UNIVERSITY  of  CALIFORNIA 

AT 

LOS  ANGELES 
LIBRARY 


\ 


INTERNATIONAL  LAW. 


RECENT    SUPREME    COURT    DECISIONS 


AND 


OTHER   OPINIONS   AND   PRECEDENTS. 


PREPARED    UNDER    THE   DIRECTION   OF  THE 

UNITED  STATES  NAVAL  WAR  COLLEGE. 


WASHINGTON: 

GOVERNMENT    PRINTING    OFFICE. 
1904. 

115583 


NOTE. 

These  decisions  and  other  precedents,  including1  those  arising1  during 
the  Spanish-American  war,  were  originally  compiled  by  Captain  C.  H. 
Stockton,  U.  S.  Navy,  under  the  direction  of  the  United  States  Naval 
War  College.  With  some  additions  they  have  been  arranged  and  pre- 
pared for  publication  by  the  college  staff. 

MARCH,  1904. 


TABLE  OF  CONTENTS. 


SUPREME  COURT  DECISIONS. 

Page. 

UNITED  STATES  r.  RODGERS 5 

THREE  FRIENDS 20 

UNDERBILL  v.  HERNANDEZ 37 

OLINDE  RODRIGUES 40 

PEDRO 58 

BUENA  VENTURA 70 

PAQUETE  HABANA,  AND  LOLA 80 

ADULA 105 

PANAMA 123 

BENITO  ESTENGER 136 

CARLOS  F.  ROSES 146 

OTHER  OPINIONS  AND  PRECEDENTS. 

INTERNATIONAL  BOUNDARY  QUESTIONS: 

Title  by  prescription  defined 165 

JURISDICTION  OK  THE  UNITED  STATES  OVER  BERING  SEA: 

Fur  seal  arbitration 166 

RIGHTS  OF  UNITED  STATES  CITIZENS  IN  FOREIGN  COUNTRIES: 

Damages  due  for  illegal  imprisonment 173 

EXTRATERRITORIAL  RIGHTS  IN  CHINA: 

As  to  municipality  of  Shanghai 174 

COOPERATION   OF    CIVILIZED    POWERS    IN    NON-CHRISTIAN    AND    SEMICIVILIZED 
COUNTRIES: 

Extracts  from  British  Admiralty  station  orders  for  China 177 

INJURIES  TO  FOREIGNERS  BY  MOB  VIOLENCE: 

Case  of  Italian  subjects  in  New  Orleans 183 

Case  of  Antonio  Abbagnato 190 

ARREST  OF  DESERTERS  UNDER  FOREIGN  FLAG  IN  HOME  JURISDICTION: 

Procedure  recommended 192 

AMERICAN  CITIZENS  EXILED  FROM  FOREIGN  COUNTRIES  FOR  CAUSE: 

As  to- their  right  to  reenter  without  permission 193 

SUBMARINE  CABLES  IN  ENEMY  COUNTRY: 

Subject  to  damage  as  incident  of  war 194 

CONTINUOUS  VOYAGES: 

Case  of  the  Bundesrath  in  the  South  African  war 195 

STATUS  OF  AUXILIARY  CRUISERS  IN  TIME  OF  WAR: 

Case  of  the  Yale 200 

MILITARY  OCCUPATION: 

War  Department  General  Orders,  No.  101,  publishing  Executive  Order  for 
the  government  of  United  States  forces  during  the  military  occupation 

of  Santiago  de  Cuba 202 

RIGHT   OF   MILITARY   AUTHORITIES  TO    IMPOSE   TARIFF   UPON    IMPORTS   DURING 

MILITARY  OCCUPATION '_.       205 

ASSUMPTION  OF  CONSULAR  FUNCTIONS  BY  NAVAL  OFFICERS  IN  TERRITORY  HELD 

BY  MILITARY  OCCUPATION 205 

INSURGENT  BLOCKADE: 

Certain  conclusions  of  the  Department  of  State 206 

3 


INTERNATIONAL  LAW:  RECENT  SUPREME  COURT  DECISIONS  AND 
OTHER  OPINIONS  AND  PRECEDENTS, 


CASE  OF  UNITED  STATES  v.  RODGERS. 

CERTIFICATE    OF    DIVISION    IN    OPINION    FROM    THE     EASTERN     DIS- 
TRICT   OF    MICHIGAN. 

(Vol.  150,  United  States  Reports,  p.  249.     Decided  November  20,  1893.     MR.  JUSTICE 
FIELD  delivered  the  opinion  of  the  court.) 

In  Februarv,  1888,  the  defendant,  Robert  S.  Rodgers    statement    of 

the  case 

and  others,  were  indicted  in  the  District  Court  of  the 
United  States  for  the  Eastern  District  of  Michigan  for 
assaulting,  in  August,  1887,  with  a  dangerous  weapon,  one 
James  Downs,  on  board  of  the  steamer  Alaska,  a  vessel 
belonging  to  citizens  of  the  United  States,  and  then  being 
within  the  admirality  jurisdiction  of  the  United  States, 
and  not  within  the  jurisdiction  of  any  particular  state  of 
the  United  States,  viz.  within  the  territorial  limits  of 
the  Dominion  of  Canada. 

The  indictment  contained  six  counts,  charging  the 
offence  to  have  been  committed  in  different  ways,  or  with 
different  intent,  and  was  remitted  to  the  Circuit  Court  for 
the  Sixth  Circuit  of  the  Eastern  District  of  Michigan. 
There  the  defendant  tiled  a  plea  to  the  jurisdiction  of  the 
court,  alleging  that  it  had  no  jurisdiction  of  the  matters 
charged,  as  appeared  on  the  face  of  the  indictment,  and  to 
the  plea  a  demurrer  was  tiled.  Upon  this  demurrer  the 
judges  of  the  Circuit  Court  were  divided  in  opinion,  and 
they  transmitted  to  this  court  the  following  certificate  of 
division: 

' '  Certtfwt*  of  Division  of  Opin  ion . 

ion. 

"United  States  of  America.  The  Circuit  Court  of  the 
United  States  for  the  Sixth  Circuit  and  Eastern  District 
of  Michigan. 

"THE  UNITED  STATES] 

w. 
ROBERT  S.  RODGERS.  J 

"The  defendant  in  this  cause  was  indicted  on  the 
twenty-fourth  day  of  February,  in  the  3*ear  of  our  Lord 

5 


6 

one  thousand  eight  hundred  and  eighty-eight,  in  the  Dis- 
trict Court  of  the  United  States  for  the  Eastern  District 
of  Michigan,  together  with  John  Gustave  Beyers  and 
others,  charged,  under  section  5346  of  the  Revised  Stat- 
utes of  the  United  States,  with,  having  made  an  assault 
with  dangerous  weapons  upon  one  James  Downs,  the 
assault  having  taken  place  on  the  steamer  Alaska,  a  ves- 
sel owned  by  citizens  of  the  United  States,  while  such 
vessel  was  in  the  Detroit  River,  out  of  the  jurisdiction  of 
any  particular  State  of  the  United  States  and  within  the 
territorial  limits  of  the  Dominion  of  Canada,  and  the  said 
Robert  S.  Rodgers,  and  the  others  indicted  with  him,  hav- 
ing first,  after  the  assault,  come  to  the  United  States  in 
the  Eastern  District  of  Michigan. 

"On  the  twentieth  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  eighty-nine,  the 
defendant  Rodgers  was  arrested,  and  on  the  same  day  the 
indictment  was,  on  motion  of  the  United  States  attorney 
for  the  Eastern  District  of  Michigan,  and  by  order  of  the 
District  Court  for  such  district,  remitted  to  the  Circuit 
Court  for  such  district,  and,  with  all  proceedings  thereto- 
fore taken,  certified  to  such  Circuit  Court. 

"On  the  twenty-third  day  of  September,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  eighty-nine,  the 
defendant,  on  being  called  upon  to  plead  in  the  Circuit 
Court  of  the  United  States  for  the  Eastern  District  of 
Michigan,  by  permission  of  the  court  pleaded  in  abatement 
to  the  jurisdiction  of  the  court,  claiming  that  under  sec- 
tion 5346  of  the  Revised  Statutes  of  the  United  States  the 
courts  of  the  United  States  have  no  jurisdiction  of  offences 
committed  in  the  Detroit  River  on  a  vessel  of  the  United 
States  within  the  territorial  limits  of  the  Dominion  of 
Canada. 

"The  United  States,  by  C.  P.  Black,  United  States 
attorney,  and  Charles  T.  Wilkins,  assistant  United  States 
attorney  for  the  Eastern  District  of  Michigan,  demurred 
to  such  plea,  and  the  defendant  joined  on  demurrer. 

"The  matter  of  the  plea  of  the  jurisdiction  coming  on 

to  be  heard  in  the  Circuit  Court  of  the  United  States  for 

the  Eastern  District  of  Michigan,  on  the  third  day  of 

October,  in  the  jrear  of  our  Lord  eighteen  hundred  and 

eighty-nine,  before  the  circuit  and  district  judges,  and 

the  defendant  being  present  in  court,  the  said  circuit  and 

district  judges  were  divided  in  opinion  on  the  question: 

Question  upon  '  Whether  the  courts  of  the  United  States  have  jurisdiction, 

arose.  under  section  534-6  of  the  Revised  Statutes  of  the  United 


States,  to  try  a  person  for  an  assault,  with  a  dangerous 
weapon,  committed  on  a  vessel  belonging  to  a  citizen  of  the 
United  States,  when  such  vessel  is  in  the  Detroit  J^iver,  out 
of  the  j  urisdiction  of  any  particular  State  and  within  the 
territorial  limits  of  the  Dominion  of  Canada.^ 

"And  so,  at  the  request  of  the  defendant  and  of  the 
United  States  attorney  for  this  district,  the  circuit  and 
district  judges  do  hereby  at  the  same  term  state  this  point 
upon  which  they  disagree,  and  hereby  direct  the  same  to 
be  certified  under  the  seal  of  the  Circuit  Court  of  the 
United  States  for  the  Eastern  District  of  Michigan  to  the 
Supreme  Court  of  the  United  States  at  its  next  session, 
for  its  opinion  thereon. 

"HOWELL  E.  JACKSON, 

"  Circuit  Judge. 
"HENRY  B  BROWN, 

"  District  Judge" 

Section  5346  of  the  Revised  Statutes,  upon  which  the 
indictment  was  found,  is  as  follows: 

"SEC.  5346.  Every  person  who,  upon  the  high  seas,  or  R|vfSedstat mis' 
in  any  arm  of  the  sea,  or  in  any  river,  haven,  creek,  basin, 
or  bay,  within  the  admirality  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  an}^  particular  State, 
on  board  any  vessel  belonging  in  whole  or  part  to  the 
United  States,  or  an}-  citizen  thereof,  with  a  dangerous 
weapon,  or  with  intent  to  perpetrate  any  felony,  commits 
an  assault  on  another  shall  be  punished  by  a  fine  of  not 
more  than  three  thousand  dollars  and  by  imprisonment  at 
hard  labor  not  more  than  three  years." 

The  statute  relating  to  the  place  of  trial  in  this  case  is 
contained  in  section  730  of  the  Revised  Statutes,  which  is 
as  follows: 

"Sfic.  730.  The  trial  of  all  offences  committed  upon  the 
high  seas  or  elsewhere,  out  of  the  jurisdiction  of  any 
particular  State  or  district,  shall  be  in  the  district,  where 
the  offender  is  found  or  into  which  he  is  first  brought." 

MR.  JUSTICE  FIELD  delivered  the  opinion  of  the  court: 
Several  questions  of  interest  arise  upon  the  construe-    opinion, 
tion  of  section  5346  of  the  Revised  Statues,  upon  which 
the  indictment  in  this  case  was  found.     The  principal  one 
is  whether  the  term  "high  seas",  as  there  used,  is  appli-mj^nfng>ofwrm> 
cable  to  the  open,  unenclosed  waters  of  the  Great  Lakes,  "hi«h  seas-" 
between  which  the  Detroit  River  is  a  connecting  stream. 
The  term  was  formerly  used,  particularly  by  writers  on  ^Former  meau. 
public    law,   and    generally    in    official    communications 


8 

between  different  governments,  to  designate  the  open, 
unenclosed  waters  of  the  ocean,  or  of  the  British  seas, 
outside  of  their  ports  or  Havens.  At  one  time  it  was 
claimed  that  the  ocean,  or  portions  of  it,  were  .subject  to 
the  exclusive  use  of  particular  nations.  The  Spaniards, 
claims  in  leth  m  tne  \gth  century,  asserted  the  right  to  exclude  all 

and  17th  centu-  »  '  » 

ries-  others  from  the  Pacific  Ocean.     The  Portuguese  claimed, 

with  the  Spaniards,  under  the  grant  of  Pope  Alexander 
VI.,  the  exclusive  use  of  the  Atlantic  Ocean  west  and 
south  of  a  designated  line.  And  the  English,  in  the  17th 
century,  claimed  the  exclusive  right  to  navigate  the  seas 
surrounding  Great  Britain.  Woolsey  on  International 
Law,  §55. 

In  the  discussion  which  took  place  in  support  of  and 
against  these  extravagant  pretensions  the  term  "high 
seas"  was  applied,  in  the  sense  stated.  It  was  also  used 
in  that  sense  by  English  courts  and  law  writers.  There 
was  no  discussion  with  them  as  to  the  waters  of  other  seas. 
The  public  discussions  were  generally  limited  to  the  con- 
sideration of  the  question  whether  the  high  seas,  that  is, 
the  open,  unenclosed  seas,  as  above  defined,  or  any  portion 
thereof,  could  be  the  property  or  under  the  exclusive  juris- 
diction of  any  nation,  or  whether  they  were  open  and  free 
to  the  navigation  of  all  nations.  The  inquiry  in  the  Eng- 
lish courts  was  generally  limited  to  the  question  whether 
the  jurisdiction  of  the  admiralty  extended  to  the  waters  of 
bays  and  harbors,  such  extension  depending  upon  the  fact 
whether  they  constituted  a  part  of  the  high  seas. 
Haie'sdefini-  Jn  his  treatise  on  the  rights  of  the  sea,  Sir  Matthew 

tion.  to  . 

Hale  says:  "The  sea  is  either  that  which  lies  within  the 
body  of  a  county,  or  without.  That  arm  or  branch  of  the 
sea  which  lies  within  the  fauces  terrse,  where  a  man  may 
reasonably  discern  between  shore  and  shore,  is,  or  at  least 
may  be,  within  the  bod}7  of  a  county,  and,  therefore,  within 
the  jurisdiction  of  the  sheriff  or  coroner.  That  part  of 
the  sea  which  lies  not  within  the  body  of  a  county  is  called 
the  main  sea  or  ocean."  De  Jure  Maris,  c.  iv.  By  the 
"main  sea"  Hale  here  means  the  same  thing  expressed  03^ 
the  term  "  high  sea" — "  mare  altum"  or  "  le  haut  meer." 
defiSuions.°ourt  In  Waring  v.  Clarke,  5  How.  440,  453,  this  court  said 
that  it  had  been  frequently  adjudicated  in  the  English 
common  law  courts  since  the  restraining  statutes  of  Rich- 
ard II.  and  Henry  IV.,  "that  high  seas  mean  that  portion 
of  the  sea  which  washes  the  open  coast."  In  United  States 
v.  Grush^  5  Mason,  290,  it  was  held  by  Mr.  Justice  Story, 


9 

in  the  United  States  Circuit  Court,  that  the  term  "  high 
seas,"  in  its  usual  sense,  expresses  the  unenclosed  ocean 
or  that  portion  of  the  sea  which  is  without  the  fauces 
/<  /vvf  on  the  sea  coast,  in  contradistinction  to  that  which 
is  surrounded  or  enclosed  between  narrow  headlands  or 
promontories.  It  was  the  open,  unenclosed  waters  of  the 
ocean,  or  the  open,  unenclosed  waters  of  the  sea,  which 
constituted  the  "high  seas"  in  his  judgment.  There  was 
no  distinction  made  by  him  between  the  ocean  and  the  sea, 
and  there  was  no  occasion  for  any  such  distinction.  The 
question  in  issue  was  whether  the  alleged  offences  were 
committed  within  a  county  of  Massachusetts  on  the  sea 
coast,  or  without  it,  for  in  the  latter  case  the}7  were  com- 
mitted upon  the  high  seas  and  within  the  statute.  It  was 
held  that  they  were  committed  in  the  county  of  Suffolk, 
and  thus  were  not  covered  by  the  statute. 

If  there  were  no  seas  other  than  the  ocean,  the  term 
"high  seas"  would  be  limited  to  the  open,  unenclosed 
waters  of  the  ocean.     But  as  there  are  other  seas  besides 
the  ocean,  there  must  be  high^eas  other  than  those  of  the 
ocean.     A  large  commerce  is  conducted  on  seas  other  than 
the  ocean  and  the  English  seas,  and  it  is  equally  necessary 
to  distinguish  between  their  open  waters  and  their  ports 
and  havens,  and  to  provide  for  offences  on  vessels  navigat- 
ing those  waters  and  for  collisions  between  them.     The  incites  dSistfnc- 
term  "high  seas"  does  not,  in  either  case,  indicate  any  ope"  waters  and 
separate  and  distinct  body  of  water;  but  only  the  open  and%heawatere 
waters  of  the  sea  or  ocean,  as  distinguished  from  ports  twee^6 narrow 
and  havens  and  waters  within  narrow  headlands  on  the headlands- 
coast.     This  distinction  was  observed  by  Latin   writers 
between  the  ports  and  havens  of  the  Mediterranean  and 
its  open  waters — the  latter  being  termed  the  high  seas.1 
In  that  sense  the  term  may  also  be  properly  used  in  refer- 
ence to  the  open  waters  of  the  Baltic  and  the  Black  Sea, 
both  of  which  are  inland  seas,  finding  their  way  to  the 
ocean  by  a  narrow  and  distant  channel.    Indeed,  wherever 
there  are  seas  in  fact,  free  to  the  navigation  of  all  nations 
and  people  on  their  borders,  their  open  waters  outside  of 
the   portion    "  surrounded   or   enclosed  between  narrow 
headlands  or  promontories,"  on  the  coast,  as  stated  by 
Mr.  Justice  Ston-,  or  "without  the  body  of  a  county," 

1  "  Insula  portion. 

Effirit  objertu  lateruin,  quibtis  omnis  ab  alto 
Frangitnr,  inque  sinus  sriinlit  si'se  unda  reductos." 

.  —  The  ^Eneid,  Lib.  1,  v.  159-1H1. 


10 

«,s  declared  by  Sir  Matthew  Hale,  are  properly  character- 
ized as  high  seas,  by  whatever  name  the  bodies  of  water 
of  which  the}*  are  a  part  may  be  designated.  Their  names 
xlo  not  determine  their  character.  There  are,  as  said 
above,  high  seas  on  the  Mediterranean,  (meaning  outside 
•of  the  enclosed  waters  along  its  coast,)  upon  which  the 
principal  commerce  of  the  ancient  world  was  conducted 
and  its  great  naval  battles  fought.  To  hold  that  on  such 
seas  there  are  no  high  seas,  within  the  true  meaning  of 
that  term,  that  is,  no  open,  unenclosed  waters,  free  to  the 
navigation  of  all  nations  and  people  on  their  borders, 
would  be  to  place  upon  that  term  a  narrow  and  contracted 
supremecourt's meaning.  We  prefer  to  use  it  in  its  true  sense,  as  appli- 

Interpretation  of 

the  term  "high cable  to  the  open,  unenclosed  waters  of  all  seas,  than  to 
adhere  to  the  common  meaning  of  the  term  two  centuries 
ago,  when  it  was  generally  limited  to  the  open  waters  of 
the  ocean  and  of  seas  surrounding  Great  Britain,  the  free- 
dom of  which  was  then  the  principal  subject  of  discussion. 
If  it  be  conceded,  as  we  think  it  must  be,  that  the  open, 
unenclosed  waters  of  the  Mediterranean  are  high  seas, 
that  concession  is  a  sufficient  answer  to  the  claim  that  the 
high  seas  always  denote  the  open  waters  of  the  ocean. 

Whether  the  term  is  applied  to  the  open  waters  of  the 
ocean  or  of  a  particular  sea,  in  any  case,  will  depend  upon 
the  context  or  circumstances  attending  its  use,  which  in 
all  cases  affect,  more  or  less,  the  meaning  of  language.  It 
may  be  conceded  that  if  a  statement  is  made  that  a  vessel 
is  on  the  high  seas,  without  any  qualification  by  language 
or  circumstance,  it  will  be  generally  understood  as  mean- 
ing that  the  vessel  is  upon  the  open  waters  of  one  of  the 
oceans  of  the  world.  It  is  true,  also,  that  the  ocean  is 
often  spoken  of  by  writers  on  public  law  as  the  sea,  and 
characteristics  are  then  ascribed  to  the  sea  generally  which 
are  properly  applicable  to  the  ocean  alone;  as,  for  instance, 
that  its  open  waters  are  the  highway  of  all  nations.  Still 
the  fact  remains  that  there  are  other  seas  than  the  ocean 
whose  open  waters  constitute  a  free  highway  for  naviga- 
tion to  the  nations  and  people  residing  on  their  borders, 
and  are  not  a  free  highway  to  other  nations  and  people, 
•except  there  be  free  access  to  those  seas  by  open  waters  or 
by  conventional  arrangements. 

As  thus  defined,  the  term  would  be  as  applicable  to  the 
open  waters  of  the  great  Northern  lakes  as  it  is  to  the 
open  waters  of  those  bodies  usually  designated  as  seas. 


11 

The  Great  Lakes  possess  every  essential  characteristic  of  Great  Lakes  are 

,  •11-1111      essentially    seas: 

seas.     They  are  or   large  extent  in  length  and  breadth;  their  being  tide- 

.,1111        f  ...  ,.  .        lessand  fresh  is 

they  are  navigable  the  whole  distance  in  either  direction  nonessemiai. 
by  the  largest  vessels  known  to  commerce;  objects  are  not 
distinguishable  from  the  opposite  shores;  they  separate,  in 
many  instances,  States,  and  in  some  instances  constitute 
the  boundary  between  independent  nations;  and  their 
waters,  after  passing  long  distances,  debouch  into  the 
ocean.  The  fact  that  their  waters  are  fresh  and  not  sub- 
ject to  the  tides,  does  not  affect  their  essential  character  as 
seas.  Many  seas  are  tideless,  and  the  waters  of  some  are 
saline  only  in  a  very  slight  degree. 

The  waters  of  Lake  Superior,  the  most  northern  of 
these  lakes,  after  traversing  nearly  400  miles,  with  an 
average  breadth  of  over  100  miles,  and  those  of  Lake 
Michigan,  which  extend  over  350  miles,  with  an  average 
breadth  of  65  miles,  join  Lake  Huron,  and,  after  flowing 
about  250  miles,  with  an  average  breadth  of  70  miles,  pass 
into  the  river  St.  Clair;  thence  through  the  small  lake  of 
St.  Clair  into  the  Detroit  River;  thence  into  Lake  Erie 
and,  by  the  Niagara  River,  into  Lake  Ontario;  whence 
they  pass,  by  the  river  St.  Lawrence,  to  the  ocean,  mak- 
ing a  total  distance  of  over  2,000  miles.  Encj*.  Britan- 
nica,  vol.  21,  p.  178.  The  area  of  the  Great  Lakes,  in 
round  numbers,  is  100,000  square  miles.  Ibid.  vol.  14,  p. 
217.  They  are  of  larger  dimensions  than  man}'  inland 
seas  which  are  at  an  equal  or  greater  distance  from  the 
ocean.  The  waters  of  the  Black  Sea  travel  a  like  distance 
before  they  come  into  contact  with  the  ocean.  Their  first 
outlet  is  through  the  Bosphorus,  which  is  about  20  miles 
long  and  for  the  greater  part  of  its  way  less  than  a  mile 
in  width,  into  the  sea  of  Marmora,  and  through  that  to  the 
Dardanelles,  which  is  about  40  miles  in  length  and  less 
than  four  miles  in  width,  and  then  they  find  their  way 
through  the  islands  of  the  Greek  Archipelago,  up  the 
Mediterranean  Sea.  past  the  Straits  of  Gibraltar  to  the 
ocean,  a  distance,  also,  of  over  2,000  miles. 

In  the  Genesee  Chief  case.  12  How.  443,  this  court,  in    Previous  su- 

'  preme  Court  pro- 

considering  whether  the  admiralty  jurisdiction  of  the  nouncements  iu 
United  States  extended  to  the  Great  Lakes,  and  speaking, 
through  Chief  Justice  Taney,  of  the  general  character  of 
those  lakes,  said:  k*These  lakes  are,  in  truth,  inland  seas. 
Different  Static  border  on  them  on  one  side,  and  a  foreign 
nation  on  the  other.  A  great  and  growing  commerce  is 


12 

carried  on  upon  them  between  different  States  and  a  for- 
eign nation,  which  is  subject  to  all  the  incidents  and  haz- 
ards that  attend  commerce  on  the  ocean.  Hostile  fleets 
have  encountered  on  them,  and  prizes  been  made;  and 
every  reason  which  existed  for  the  grant  of  admiralty 
jurisdiction  to  the  general  government  on  the  Atlantic 
seas  applies  with  equal  force  to  the  lakes.  There  is  an 
equal  necessitj^  for  the  instance  and  for  the  prize  power 
of  the  admiralty  court  to  administer  international  law,  and 
if  the  one  cannot  be  established,  neither  can  the  other. " 
(p.  453.) 

After  using  this  language,  the  Chief  Justice  commented 
upon  the  inequalit3T  which  would  exist,  in  the  administra- 
tion of  justice,  between  the  citizens  of  the  States  on  the 
lakes,  if,  on  account  of  the  absence  of  tide  water  in  those 
lakes,  they  were  not  entitled  to  the  remedies  afforded  by 
the  grant  of  admiralty  jurisdiction  of  the  Constitution,  and 
the  citizens  of  the  States  bordering  on  the  ocean  or  upon 
navigable  waters  affected  by  the  tides.  The  court,  per- 
ceiving that  the  reason  for  the  exercise  of  the  jurisdiction 
did  not  in  fact  depend  upon  the  tidal  character  of  the 
waters,  but  upon  their  practical  navigabilit\T  for  the  pur- 
poses of  commerce,  disregarded  the  test  of  tide  waters  pre- 
vailing in  England  as  inapplicable  to  our  country  with  its 
vast  extent  of  inland  waters.  Acting  upon  like  considera- 
tions in  the  application  of  the  term  "high  seas"  to  the 
waters  of  the  Great  Lakes,  which  are  equally  navigable, 
for  the  purposes  of  commerce,  in  all  respects,  with  the 
bodies  of  water  usually  designated  as  seas,  and  are  in  no 
respect  affected  by  the  tidal  or  saline  character  of  their 
waters,  we  disregard  the  distinctions  made  between  salt 
and  fresh  water  seas,  which  are  not  essential,  and  hold 

intenatsofntfhe'statd  tnat  ^6  reason  °f  the  statute,  in  providing  for  protection 
against  violent  assaults  on  vessels  in  tidal  waters,  is  no 
greater  but  identical  with  the  reason  for  providing  against 
similar  assaults  on  vessels  in  navigable  waters  that  are 
neither  tidal  nor  saline.  The  statute  was  intended  to  ex- 
tend protection  to  persons  on  vessels  belonging  to  citizens 
of  the  United  States,  not  only  upon  the  high  seas,  but  in 
all  navigable  waters  of  every  kind  out  of  the  jurisdiction 
of  any  particular  State,  whether  moved  by  the  tides  or 
free  from  their  influence. 

Fron£ca8e.Lake  The  character  of  these  lakes  as  seas  was  recognized  by 
this  court  in  the  recent  Chicago  Ldke  Front  casc\  where 
we  said:  ""These  lakes  possess  all  the  general  characteris- 


13 

tics  of  open  seas,  except  in  the  freshness  of  their  waters, 
and  in  the  absence  of  the  ebb  and  flow  of  the  tide."  "In 
other  respects,"  we  added,  "they  are  inland  seas,  and 
there  is  no  reason  or  principle  for  the  assertion  of  domin- 
ion and  sovereignty  over  and  ownership  by  the  State  of 
lands  covered  by  tide  waters  that  is  not  equally  appli- 
cable to  its  ownership  of  and  dominion  and  sovereignty 
over  lands  covered  by  the  fresh  waters  of  these  lakes." 
Illinois  Central  Railroad  v.  Illinois,  146,  U.  S.  387,435. 

It  is  to  be  observed  also  that  the  term  "high"  in  one  of  t.One,  4lignifica; 

&  f  tion  of  the  word 

its  significations  is  used  to  denote  that  which  is  common,  "high"  and  its 

"  application. 

open,  and  public.  Thus  eveiy  road  or  way  or  navigable 
river  which  is  used  freely  by  the  public  is  a  "high"  way. 
So  a  large  body  of  navigable  water  other  than  a  river, 
which  is  of  an  extent  be^vond  the  measurement  of  one's 
unaided  vision,  and  is  open  and  unconfined,  and  not  under 
the  exclusive  control  of  anjT  one  nation  or  people,  but  is 
the  free  highway  of  adjoining  nations  or  people,  must  fall 
under  the  definition  of  "high  seas"  within  the  meaning  of 
the  statute.  We  may  as  appropriately  designate  the  open, 
unenclosed  waters  of  the  lakes  as  the  high  seas  of  the  lakes, 
us  to  designate  similar  waters  of  the  ocean  as  the  high  seas 
of  the  ocean,  or  similar  waters  of  the  Mediterranean  as  the 
high  seas  of  the  Mediterranean. 

The  language  of  section  5346,  immediately  following  the    context  of  s-ec. 

,,,.    ,  ,,   ,       ,       .          ,,'  ,,      £  .    ,  ,,     5346  lends  force  to 

term  "high  seas,  declaring  the  penalty  lor  violent  assaults  the  above  con- 
when  committed  on  board  of  a  vessel  in  any  arm  of  the  seas ' 
or  in  any  river,  haven,  creek,  basin,  or  bay,  within  the 
admiralty  jurisdiction  of  the  United  States,  and  out  of  the 
jurisdiction  of  any  particular  State,  equally  as  when  com- 
mitted on  board  of  a  vessel  on  the  high  seas,  lends  force 
to  the  construction  given  to  that  term.  The  language  used 
must  be  read  in  conjunction  with  that  term,  and  as  refer- 
ring to  navigable  waters  out  of  the  jurisdiction  of  any  par- 
ticular State,  but  connecting  with  the  high  seas  mentioned. 
The  Detroit  River,  upon  which  was  the  steamer  Alaska  at 
the  time  the  assault  was  committed,  connects  the  waters  of 
Lake  Huron  (with  which,  as  stated  above,  the  waters  of 
Lake  Superior  and  Lake  Michigan  join)  with  the  waters 
of  Lake  Erie,  and  separates  the  Dominion  of  Canada  from 
the  United  States,  constituting  the  boundary  between  them, 
the  dividing  line  running  nearly  midway  between  its  banks, 
as  established  by  commissioners,  pursuant  to  the  treaty 
between  the  two  countries.  8  Stat.  274,  276.  The  river 
is  about  22  miles  in  length  and  from  one  to  three  miles  in 


14 


width,  and  is  navigable  at  all  seasons  of  the  year  by  vessels- 
of  the  largest  size.  The  number  of  vessels  passing  through 
it  each  3rear  is  immense.  Between  the  years  1880  and  1892, 
inclusive,  they  averaged  from  thirty-one  to  forty  thousand 
a  year,  having  a  tonnage  varying  from  sixteen  to  twenty- 
four  millions.1  In  traversing  the  river  they  are  constant!}' 
passing  from  the  territorial  jurisdiction  of  the  one  nation 
to  that  of  the  other.  All  of  them,  however,  so  far  as  trans- 
actions had  on  board  are  concerned,  are  deemed  to  be  within 
the  country  of  their  owners.  Constructively  they  con- 
stitute a  part  of  the  territory  of  the  nation  to  which  the 
owners  belong.  Whilst  they  are  on  the  navigable  waters 
Admiralty  of  the  river  they  are  within  the  admiralty  jurisdiction  of 

jurisdiction  over    .  *     ......         .  ,    *          ,  , 

vessels  in  the  DC- that  country.     Inis  lurisdiction  is  not  changed  by  the  fact 

troit  River.  J  •    ui        •  4.-  • 

that  each  of  the  neigh  boring  nations  may  in  some  cases 
assert  its  own  authority  over  persons  on  such  vessels  in 
relation  to  acts  committed  by  them  within  its  territorial 
limits.  In  what  cases  jurisdiction  by  each  country  will  be 
thus  asserted  and  to  what  extent,  it  is  not  necessary  to 
inquire,  for  no  question  on  that  point  is  presented  for  our 
General  rule,  consideration.  The  general  rule  is  that  the  country  to 
which  the  vessel  belongs  will  exercise  jurisdiction  over  all 
matters  affecting  the  vessel  or  those  belonging  to  her,  with- 
out interference  of  the  local  government,  unless  they 
involve  its  peace,  dignity,  or  tranquility,  in  which  case  it 
may  assert  its  authorit}T.  Wildenhus's  case,  120,  U.  S.,  lr 
12;  Halleck  on  International  Law,  c.  vii,  §  26,  p.  17i. 
The  admiralty  jurisdiction  of  the  country  of  the  owners  of 
the  steamer  upon  which  the  offence  charged  was  committed 
is  not  denied.  They  being  citizens  of  the  United  States, 
and  the  steamer  being  upon  navigable  waters,  it  is  deemed 

1  The  following  statement,  furnished  by  Colonel  O.  M.  Poe,  of  the 
Engineer  Corps,  shows  the  traffic  through  Detroit  River  for  the  years 
indicated: 


Year. 

Number 
of 

vessels. 

Registered 
tonnage. 

Year. 

Number 
of 
vessels. 

Registered 
tonnage. 

1880  

40,  521 

20,235,249 

1887  .  .  . 

38,125 

18,864,250 

1881 

35  888 

17  572,240 

1888  

31,404 

19,099,060 

1882 

35,199 

17,  872,  182 

1889  

32,  415 

19,646,000 

1883  

40,385 

17,695,174 

1890  

35,  640 

21,684,000 

1884 

38  742 

18,045,949 

1891  

34,  251 

22,  160,  000 

1885  

34,  921 

16,777,828 

1892  

...       33,860 

24,  785,  000 

1886 

38  261 

18,  968,  065 

Colonel  Poe  adds:  "This  statement  does  not  include  Canadian  ves- 
sels, a  large  number  of  which  use  this  channel,  nor  does  it  include  any 
vessels  not  clearing  from  the  various  custom  houses.  Were  these 
included,  a  considerably  greater  showing  could  be  made.  They  are 
not  included  because  the  statistics  can  not  be  obtained. 


15 

to  be  within  the  admiralty  jurisdiction  of  the  United  States. 
It  way,  therefore,  perfectly  competent  for  Congress  to 
enact  that  parties  on  board  committing-  an  assault  with  a 
dangerous  weapon  should  be  punished  when  brought  within 
the  jurisdiction  of  the  District  Court  of  the  United  States. 
But  it  will  hardly  be  claimed  that  Congress  by  the  legis- 
lation in  question  intended  that  violent  assaults  committed 
upon  persons  on  vessels  owned  b}'  citizens  of  the  United 
States  in  the  Detroit  River,  without  the  jurisdiction  of  any 
particular  State,  should  be  punished,  and  that  similar 
offences  upon  persons  on  vessels  of  like  owners  upon  the 
adjoining  lakes  should  be  unprovided  for.  If  the  law  can, 
be  deemed  applicable  to  offences  committed  on  vessels  in 
any  navigable  river,  haven,  creek,  basin,  or  bay,  connect- 
ing with  the  lakes,  out  of  the  jurisdiction  of  any  particular 
State,  it  would  not  be  reasonable  to  suppose  that  Congress 
intended  that  no  remedy  should  be  afforded  for  similar 
offences  committed  on  vessels  upon  the  lakes,  to  which  the 
vessels  on  the  river,  in  almost  all  instances,  are  directed, 
and  upon  whose  waters  they  are  to  be  chiefly  engaged. 
The  more  reasonable  inference  is  that  Congress  intended  Reason  a  bi'e- 

i     j      .1  IT  ,.,11.  i        construction  of 

to  include  the  open,  unenclosed  waters  of  the  lakes  under  term  "high.seas."- 
the  designation  of  high  seas.  The  term,  in  the  eye  of 
reason,  is  applicable  to  the  open,  unenclosed  portion  of  all 
large  bodies  of  navigable  waters,  whose  extent  can  not  be 
measured  by  one's  vision,  and  the  navigation  of  which  is 
free  to  all  nations  and  people  on  their  borders,  by  what- 
ever names  those  bodies  may  be  locally  designated.  la 
some  countries  small  lakes  are  called  seasr  as  in  the  case 
of  the  Sea  of  Galilee,  in  Palestine.  In  other  countries 
large  bodies  of  waters,  greater  than  many  bodies  denom- 
inated seas,  are  called  lakes,  gulfs,  or  basins.  The  nomen- 
clature, however,  does  not  change  the  real  character  of 
either,  nor  should  it  affect  our  construction  of  terms  prop- 
erl}'  applicable  to  the  waters  of  either.  By  giving  to  the 
term  "high  seas"  the  construction,  indicated,  there  is  con- 
sistenc}7  and  sense  in  the  whole  statute,  but  there  is  neither 
if  it  be  disregarded.  If  the  term  applies  to  the  open,  unen- 
closed waters  of  the  lakes,  the  application  of  the  legisla- 
tion to  the  case  under  indictment  cannot  be  questioned, 
for  the  Detroit  River  is  a  water  connecting  such  high  seas, 
and  all  that  portion  which  is  north  of  the  boundary  line 
between  the  United  States  and  Canada  is  without  the  juris- 
diction of  any  State  of  the  Union.  But  if  they  be  con- 
sidered as  not  thus  apply  ing.  it  is  difficult  to  give  any  force 
to  the  rest  of  the  statute  without  supposing  that  Congresa 


16 

intended  to  provide  against  violence  on  board  of  vessels 
in  navigable  rivers,  havens,  creeks,  basins,  and  bays,  with- 
out the  jurisdiction  of  any  particular  State,  and  inten- 
tionall}'  omitted  the  much  more  important  provision  for 
like  violence  and  disturbances  on  vessels  upon  the  Great 
Lakes.  All  vessels  in  any  navigable  river,  haven,  creek, 
basin,  or  bay  of  the  lakes,  whether  within  or  without  the 
jurisdiction  of  any  particular  State,  would  some  time  find 
their  way  upon  the  waters  of  the  lakes;  and  it  is  not  a 
reasonable  inference  that  Congress  intended  that  the  law 
should  apply  to  offences  only  on  a  limited  portion  of  the 
route  over  which  the  vessels  were  expected  to  pass,  and 
that  no  provision  should  be  made  for  such  offences  over  a 
much  greater  distance  on  the  lakes. 

Congress  in  thus  designating  the  open,  unenclosed  por- 
tion of  large  bodies  of  water,  extending  beyond  one's 
vision,  naturally  used  the  same  term  to  indicate  it  as  was 
used  with  reference  to  similar  portions  of  the  ocean  or  of 
bodies  which  had  been  designated  as  seas.  When  Con- 
gress, in  1790,  first  used  that  term  the  existence  of  the 
Great  Lakes  was  known;  they  had  been  visited  by  great 
numbers  of  persons  in  trading  with  the  neighboring 
Indians,  and  their  immense  extent  and  character  were  gen- 
erally understood.  Much  more  accurate  was  this  knowl- 
edge when  the  act  of  March  3, 1825,  was  passed,  4  Stat.  115, 
c.  65,  and  when  the  provisions  of  section  5346  were  ree'n- 
acted  in  the  Revised  Statutes  in  1874.  In  all  these  cases, 
when  Congress  provided  for  the  punishment  of  violence  on 
board  of  vessels,  it  must  have  intended  that  the  provision 
should  extend  to  vessels  on  those  waters  the  same  as  to 
vessels  on  seas,  technically  so  called.  There  were  no 
bodies  of  water  in  the  United  States  to  any  portion  of 
which  the  term  "high  seas"  was  applicable  if  not  to  the 
open,  unenclosed  waters  of  the  Great  Lakes.  It  does  not 
seem  reasonable  to  suppose  that  Congress  intended  to 
confine  its  legislation  to  the  high  seas  of  the  ocean,  and  to 
its  navigable  rivers,  havens,  creeks,  basins,  and  bays, 
without  the  jurisdiction  of  any  State,  and  to  make  no  pro- 
vision for  offences  on  those  vast  bodies  of  inland  waters  of 
the  United  States.  There  are  vessels  of  every  descrip- 
tion on  those  inland  seas  now  carrying  on  a  commerce 
greater  than  the  commerce  on  any  other  inland  seas  of  the 
world.  And  we  cannot  believe  that  the  Congress  of  the 
United  States  purpose!}7  left  for  a  century  those  who 


17 

navigated  and  those  who  were  conveyed  in  vessels  upon 
those  seas  .without  any  protection. 

The  statute  under  consideration  provides  that  every 
person  who,  upon  the  high  seas  or  in  any  river  connected 
with  them,  as  we  construe  its  language,  within  the  admi- 
ralty  jurisdiction  of  the  United  States,  and  out  of  the  juris- 
diction of  any  particular  State,  commits,  on  board  of  any 
vessel  belonging  in  whole  or  in  part  to  the  United  States,  or 
any  citizen  thereof,  an  assault  on  another  with  a  dangerous 
weapon  or  with  intent  to  perpetrate  a  felony,  shall  be 
punished,  etc.  The  Detroit  River,  from  shore  to  shore, 
is  within  the  admiralty  jurisdiction  of  the  United  States,  risdictu>n  ov'e'r 
and  connects  with  the  open  waters  of  the  lakes — high  seas,  defined, 
as  we  hold  them  to  be,  within  the  meaning  of  the  statute. 
From  the  boundary  line,  near  its  center,  to  the  Canadian 
shore  it  is  out  of  the  jurisdiction  of  the  State  of  Michigan. 
The  case  presented  is  therefore  directly  within  its  provi- 
sions. The  act  of  Congress  of  September  4, 1890,  26  Stat. 
424,  c.  874,  (1  Sup.  to  the  Rev.  Stat.  chap.  874,  p.  799,) 
providing  for  the  punishment  of  crimes  subsequently  com- 
mitted on  the  Great  Lakes,  does  not,  of  course,  affect  the 
the  construction  of  the  law  previously  existing. 

We  are  not  unmindful  of  the  fact  that  it  was  held  by 
the  Supreme  Court  of  Michigan  in  People  v.  Tyler,  7  Mich- 
igan, 161,  that  the  criminal  jurisdiction  of  the  Federal 
courts  did  not  extend  to  offences  committed  upon  vessels 
on  the  lakes.  The  judges  who  rendered  that  decision  were 
able  and  distinguished;  but  that  fact,  whilst  it  justly  calls 
for  a  careful  consideration  of  their  reasoning,  does  not 
render  their  conclusion  binding  or  authoritative  upon  this 
court.  Their  opinions  show  that  they  did  not  accept  the 
doctrine  extending  the  admiralty  jurisdiction  to  cases  on 
the  lakes  and  navigable  rivers,  which  is  now  generally,  we 
might  say  almost  universally,  received  as  sound  by  the 
judicial  tribunals  of  the  country.  It  is  true,  as  there  stated, 
that,  as  a  general  principle,  the  criminal  laws  of  a  nation 
do  not  operate  beyond  its  territorial  limits,  and  that  to 
give  any  government,  or  its  judicial  tribunals,  the  right 
to  punish  any  act  or  transaction  as  a  crime,  it  must  have 
occurred  within  those  limits.  We  accept  this  doctrine  as 
a  general  rule,  but  there  are  exceptions  to  it  as  f  ully  recog- 
nized as  the  doctrine  itself.  One  of  those  exceptions  is 
that  offences  committed  upon  vessels  belonging  to  citizens 
of  the  United  States,  within  the  admiralt}T  jurisdiction. 
2056—04 2 


18 

(that  is,  within  navigable  waters,)  though  out  of  the  terri- 
torial limits  of  the  United  States,  may  be  judicially  con- 
sidered when  the  vessel  and  parties  are  brought  within 
their  territorial  jurisdiction.  As  we  have  before  stated, 
a  vessel  is  deemed  part  of  the  territory  of  the  country 
to  which  she  belongs.  Upon  that  subject  we  quote 
the  language  of  Mr.  Webster,  while  Secretary  of 
State,  in  his  letter  to  Lord  Ashburton  of  August,  1842. 
Speaking  for  the  government  of  the  United  States,  he 
stated  with  great  clearness  and  force  the  doctrine  which 
Mr  Webster  on  is  nOw  recognized  by  all  countries,  fie  said:  "It  is 

jurisdiction  over  .  £ 

vessels.  natural   to  consider  the  vessels  of  a  nation  as   parts  of 

its  territory,  though  at  sea,  as  the  State  retains  its  juris- 
diction over  them;  and,  according  to  the  commonly  received 
custom,  this  jurisdiction  is  preserved  over  the  vessels  even 
in  parts  of  the  sea  subject  to  a  foreign  dominion.  This  is 
the  doctrine  of  the  law  of  nations,  clearly  laid  down  by 
writers  of  received  authority,  and  'entirely  conformable, 
as  it  is  supposed,  with  the  practice  of  modern  nations.  If 
a  murder  be  committed  on  board  of  an  American  vessel  by 
one  of  the  crew  upon  another  or  upon  a  passenger,  while 
such  vessel  is  lying  in  a  port  within  the  jurisdiction  of  a 
foreign  State  or  sovereignty,  the  offence  is  cognizable  and 
punishable  by  the  proper  court  of  the  United  States  in  the 
same  manner  as  if  such  offence  had  been  committed  on 
board  the  vessel  on  the  high  seas.  The  law  of  England  is 
supposed  to  be  the  same.  It  is  true  that  the  jurisdiction 
of  a  nation  over  a  vessel  belonging  to  it,  while  lying  in 
the  port  of  another,  is  not  necessarily  wholly  exclusive. 
We  do  not  so  consider  or  so  assert  it.  For  any  unlawful 
acts  done  by  her  while  thus  tying  in  port,  and  for  all  con- 
tracts entered  into  while  there,  b}^  her  master  or  owners, 
she  and  they  must,  doubtless,  be  answerable  to  the  laws 
of  the  place.  Nor,  if  her  master  or  crew,  while  on  board 
in  such  port,  break  the  peace  of  the  community  by  the 
commission  of  crimes,  can  exemption  be  claimed  for  them. 
But,  nevertheless,  the  law  of  nations,  as  1  have  stated  it, 
and  the  statutes  of  governments  founded  on  that  law,  as  I 
have  referred  to  them,  show  that  enlightened  nations,  in 
modern  times,  do  clearly  hold  that  the  jurisdiction  and 
laws  of  a  nation  accompany  her  ships  not  only  over  the  high 
seas,  but  into  ports  and  harbors,  or  wheresoever  else  they 
may  be  water-borne,  for  the  general  purpose  of  governing 
and  regulating  the  rights,  duties,  and  obligations  of  those 
on  board  thereof,  and  that,  to  the  extent  of  the  exercise  of 


19 

this  jurisdiction,  the}'  are  considerered  as  parts  of  the  ter- 
ritory of  the  nation  herself. "    6  Webster's  Works,  306, 307. 
We  do  not  accept  the  doctrine  that,  because  by  the  treaty    u.  s. 

iTT-io  i  /",  V»    •      •        i  "    i  tion    unaffected 

between  the  United  States  and  Great  Britain  the  boundary  by  fact  of  bound- 

.  *'   ary  line  running 

line  between  the  two  countries  is  run  through  the  centre  through centerof 

lakes 

of  the  lakes,  their  character  as  seas  is  changed,  or  that  the 
jurisdiction  of  the  United  States  to  regulate  vessels  belong 
ing  to  their  citizens  navigating  those  waters  and  to  punish 
offenses  committed  upon  such  vessels,  is  in  any  respect 
impaired.  Whatever  effect  may  be  given  to  the  boundary 
line  between  the  two  countries,  the  jurisdiction  of  the 
United  States  over  the  vessels  of  their  citizens  navigating 
those  waters  and  the  persons  on  board  remains  unaffected. 
The  limitation  to  the  jurisdiction  by  the  qualification  that 
the  offenses  punishable  are  committed  on  vessels  in  any 
arm  of  the  sea,  or  in  any  river,  haven,  creek,  basin,  or 
bay  ''without  the  jurisdiction  of  any  particular  State," 
which  means  without  the  jurisdiction  of  any  State  of  the 
Union,  does  not  apply  to  vessels  on  the  "high  seas"  of 
the  lakes,  but  only  to  vessels  on  the  waters  designated  as 
connecting  with  them.  So  far  as  vessels  on  those  seas  are 
concerned,  there  is  no  limitation  named  to  the  authority 
of  the  United  States.  It  is  true  that  lakes,  properly  so  GreatLakesare 
called,  that  is,  bodies  of  water  whose  dimensions  are  capa- ever  designated. 
ble  of  measurement  by  the  unaided  vision,  within  the 
limits  of  a  State,  are  part  of  its  territory  and  subject  to 
its  jurisdiction,  but  bodies  of  water  of  an  extent  which 
cannot  be  measured  by  the  unaided  vision,  and  which  are 
navigable  at  all  times  in  all  directions,  and  border  on  dif- 
ferent nations  or  States  or  people,  and  find  their  outlet  in 
the  ocean  as  in  the  present  case,  are  seas  in  fact,  however 
they  may  be  designated.  And  seas  in  fact  do  not  cease  to 
be  such,  and  become  lakes,  because  by  local  custom  they 
may  be  so  called. 

In  our  judgment  the  District  Court  of  the  Eastern  Dis- 
trict of  Michigan  had  jurisdiction  to  try  the  defendant 
upon  the  indictment  found,  and  it  having  been  transferred 
to  the  Circuit  Court,  that  court  had  jurisdiction  to  proceed 
with  the  trial,  and  the  demurrer  to  its  jurisdiction  should 
have  been  overruled.  Our  opinion,  in  answer  to  the 
certificate,  is  that 

The  courts  of  the  United  States  have  jurisdiction, 
a i,< I,  f  x,:c1i<>n  ~>.) 'JfB  of  the  Revised  Statutes,  to  try  a 
person  f<>r  tin  assault,  with  a  dangerous  weapon,  cam- 
in  itti-d  1 1 n  n  r,  ,V.SY_>/  belonging  to  a  citizen  of  the  United 


20 

States,  when  such  vessel  is  in  the  Detroit  River,  out  of 
the  jurisdiction  of  any  particular  State,  and  within 
the  territorial  limits  of  the  Dominion  of  Canada;  and 
it  will  he  returned  to  the  Circuit  Court  of  the  United 
States  for  the  Sixth  Circuit  and  Eastern  District  of 
Michigan,  and  it  is  so  ordered. 
MR.  JUSTICE  GRAY  and  MR.  JUSTICE  BROWN  dissenting. 


CASE  OF  THE  THREE  FRIENDS. 

(Vol.  166,  United  States  Reports,  p.  i.    Decided  March  1, 1897.    MR.  CHIEF  JUSTICE 
FULLER  delivered  the  opinion  of  the  court.) 

The  steamer  Three  Friends  was  seized  November  7. 
1896,  by  the  collector  of  customs  for  the  district  of  St. 
John's,  Florida,  as  forfeited  to  the  United  States  under 
section  5283  of  the  Revised  Statutes,  and,  thereupon, 
November  12,  was  libelled  on  behalf  of  the  United  States 
in  the  District  Court  for  the  Southern  District  of  Florida. 

The  first  two  paragraphs  of  the  libel  alleged  the  seizure 
and  detention  of  the  vessel,  and  the  libel  then  continued: 
°f  "Third.  That  the  said  steamboat  or  steam  vessel,  the 
'  Three  Friqnds,'  was  on,  to  wit,  on  the  twenty-third  day 
of  May,  A.  r>.  1896,  furnished,  fitted  out  and  armed,  with 
intent  that  she  should  be  employed  in  the  service  of  a  cer- 
tain people,  to  wit,  certain  people  then  engaged  in  armed 
resistance  to  the  government  of  the  King  of  Spain,  in  the 
island  of  Cuba,  to  cruise  and  commit  hostilities  against  the 
subjects,  citizens  and  property  of  the  King  of  Spain,  in  the 
island  of  Cuba,  with  whom  the  United  States  are  and  were 
at  that  date  at  peace. 

"Fourth.  That  the  said  steamboat  or  steam  vessel, 
'Three  Friends,'  on,  to  wit,  the  twenty-third  day  of  May. 
A.  D.  1896,  whereof  one  Napoleon  B.  Broward  was  then 
and  there  master,  and  within  the  said  southern  district  of 
Florida,  was  then  and  there  fitted  out,  furnished  and  armed, 
with  intent  that  said  vessel,  the  said  '  Three  Friends/ 
should  be  employed  in  the  service  of  a  certain  people, 
to  wit,  the  insurgents  in  the  island  of  Cuba,  otherwise 
called  the  Cuban  revolutionists,  to  cruise  and  commit  hos- 
tilities against  the  subjects,  property  and  people  of  the 
King  of  Spain,  in  the  said  island  of  Cuba,  with  whom  the 
United  States  are  and  were  then  at  peace. 

"Fifth.  That  the  said  steamboat  or  steam  vessel, 
4  Three  Friends,'  on,  to  wit,  on  the  twenty-third  day  of 
May,  A,  D.  1896,  and  whereof  one  N.  B.  Broward  was 


21 

then  and  there  master,  within  the  navigable  waters  of  the  statement  of 
United  States,  and  within  the  southern  district  of  Florida 
and  the  jurisdiction  of  this  court,  was  then  and  there,  by 
certain  persons  to  the  attorneys  of  the  said  United  States 
unknown,  furnished,  fitted  out  and  armed,  being  loaded 
with  supplies  and  arms  and  munitions  of  war,  and  it,  the 
said  steam  vessel  '  Three  Friends,'  being  then  and  there 
furnished,  fitted  out  and  armed  with  one  certain  gun  or 
guns,  the  exact  number  to  the  said  attorneys  of  the  United 
States  unknown,  and  with  munitions  of  war  thereof,  with- 
the  intent,  then  and  there,  to  be  employed  in  the  service 
of  a  certain  people,  to  wit,  certain  people  then  engaged 
in  armed  resistance  to  the  government  of  the  King  of 
Spain  in  the  island  of  Cuba,  and  with  the"  intent  to  cruise 
and  commit  hostilities  against  the  subjects,  citizens  and 
property  of  the  King  of  Spain,  in  the  said  island  of  Cuba, 
and  who,  on  the  said  date  and  day  last  aforesaid,  and 
being  so  furnished,  fitted  out,  and  armed  as  aforesaid, 
then  and  there  aforesaid,  from  the  navigable  waters  of 
the  United  States,  to  wit,  from  St.  John's  River,  within 
the  southern  district  of  Florida,  and  within  the  jurisdiction 
of  this  court  aforesaid,  proceeded  upon  a  voyage  to  the 
island  of  Cuba  aforesaid,  with  the  intent  aforesaid,  con- 
trary to  the  form  of  the  statute  in  such  case  made  and 
provided.  And  that  by  force  and  virtue  of  the  acts  of 
Congress  in  such  case  made  and  provided,  the  said  steam- 
boat or  steam  vessel,  her  tackle,  engines,  machinery,  ap- 
parel and  furniture  became  and  are  forfeited  to  the  use  of 
the  said  United  States. 

u  Sixth.  And  the  said  attorneys  say  that  by  reason  of 
all  and  singular  the  premises  aforesaid,  and  that  by  force 
of  the  statute  in  such  case  made  and  provided,  the  afore- 
said and  described  steamboat  or  steam  vessel  'Three 
Friends,'  her  tackle,  machinery,  apparel  and  furniture, 
became  and  are  forfeited  to  the  use  of  the  said  United 
States." 

And  concluded  with  a  prayer  for  process  and  monition 
and  the  condemnation  of  the  vessel  as  forfeited.  Attach- 
ment and  monition  having  issued  as  prayed,  Napoleon  B. 
Broward  and  Montcalm  Broward,  masters  and  owners, 
intervened  as  claimants;  applied  for  an  appraisement  of 
the  vessel  and  her  release  on  stipulation ;  and  filed  the  fol- 
lowing exceptions  to  the  libel: 

"  1.  Sec.  5283,  for  an  alleged  violation  of  which  the  said 
vessel  is  sought  to  be  forfeited,  makes  such  forfeiture 
dependent  upon  the  conviction  of  a  person  for  doing  the 


22 

statement  of  act  or  acts  denounced  in  the  first  sentence  of  said  section, 
and  as  a  consequence  of  conviction  of  such  person;  whereas 
the  allegations  in  said  libel  do  not  show  what  persons  had 
been  guilty  of  the  acts  therein  denounced  as  unlawful. 

"2.  The  said  libel  does  not  show  the  'Three  Friends' 
was  fitted  out  and  armed,  attempted  to  be  fitted  out  and 
armed,  or  procured  to  be  fitted  out  and  armed  in  violation 
of  said  section. 

"  3.  The  said  libel  does  not  show  the  said  vessel  was  so 
fitted  out  and  armed,  or  so  attempted  to  be  fitted  out  and 
armed,  or  so  procured  to  be  fitted  out  and  armed  or  fur- 
nished, with  the  intent  that  said  vessel  should  be  employed 
in  the  service  of  a  foreign  prince,  or  state,  or  of  a  colony, 
district  or  people  with  whom  the  United  States  are  at 
peace. 

"4.  The  said  libel  does  not  show  by  whom  said  vessel 
was  so  fitted  out. 

"5.  Said  libel  does  not  show  in  the  service  of  what  for- 
eign prince,  or  state,  or  colony,  or  district,  or  body  politic 
the  said  vessel  was  so  fitted  out. 

"  6.  The  said  libel  does  not  show  that  said  vessel  was  so 
armed  or  fitted  out  or  furnished  with  the  intent  that  such 
vessel  should  be  employed  in  the  service  of  any  body 
politic  recognized  by  or  known  to  the  United  States  as  a 
body  politic." 

The  vessel  was  appraised  at  $4000  and  a  bond  on  stipu- 
lation given  for  $10,000,  upon  which  she  was  directed  to 
be  released.  The  cause  came  on  to  be  heard  upon  the 
exceptions  to  the  libel,  and  on  January  18  the  following 
decree  was  entered: 

"This  cause  coming  on  to  be  heard  upon  exceptions  to 
the  libel  and  having  been  fully  heard  and  considered,  it  is 
ordered  that  said  second,  third,  fifth  and  sixth  exceptions 
be  sustained  and  that  the  libellant  have  permission  to 
amend  said  libel  and  in  event  said  libel  is  not  so  amended 
within  ten  days  the  same  stand  dismissed  and  the  bond 
herein  filed  be  canceled." 

From  this  decree  the  United  States,  on  January  23, 
prayed  an  appeal  to  the  United  States  Circuit  Court  of 
Appeals  for  the  Fifth  Circuit,  which  was  allowed  and  duly 
prosecuted. 

The  following  errors  were  assigned: 

"First.  For  that  the  court  over  the  objection  of  the 
libellants  allowed  the  said  steam  vessel  'Three  Friends' 
to  be  released  from  custody  upon  the  giving  of  bond. 


23 

44 Second.  For  that  the  court  erred  in  sustaining  the  2d,    statement    of 
3d,  5th  and  6th  exceptions  of  the  claimants  to  the  libel  of 
information  of  the  libellants. 

"Third.  For  that  the  court  erred  in  entering-  a  decree 
dismissing  the  libel  of  information  herein." 

On  February  1  application  was  made  to  this  court  for  a 
writ  of  certiorari  to  bring  up  the  cause  from  said  Circuit 
Court  of  Appeals,  and,  having  been  granted  and  sent  down, 
the  record  was  returned  accordingly. 

MR.  CHIEF  JUSTICE  FULLER,  after  stating  the  case,  de- 
livered the  opinion  of  the  court: 

******* 

The  libel  alleged  that  the  vessel  was  "furnished,  fitted  opinion. 
out  and  armed,  with  intent  that  she  should  be  employed 
in  the  service  of  a  certain  people,  to  wit,  certain  people 
then  engaged  in  armed  resistance  to  the  Government  of 
the  King  of  Spain,  in  the  island  of  Cuba,  to  cruise  and 
commit  hostilities  against  the  subjects,  citizens  and  prop- 
erty of  the  King  of  Spain,  in  the  island  of  Cuba,  with 
whom  the  United  States  are  and  were  at  that  date  at 
peace." 

The  learned  District  Judge  held  that  this  was  insuffi- 
cient under  section  5283,  because  it  was  not  alleged  "that 
said  vessel  had  been  fitted  out  with  intent  that  she  be  em- 
ployed in  the  service  of  a  foreign  prince  or  State,  or  of  any 
colony,  district  or  people  recognized  as  such  by  the  politi- 
cal power  of  the  United  States." 

In  Wlborg  v.   United  States,  163  U.  S.  632,  which  was    Title  LXVII. 

Re  vised  Statutes; 

an  indictment  under  section  5286,  we  referred  to  the  eleven  as  to  its  opera- 
sections  from  5281  to  5291,  inclusive,  which  constitute 
Title  LXVII  of  the  Revised  Statutes,  and  said:  "The 
statute  was  undoubtedly  designed  in  general  to  secure  neu- 
tralit}7  in  wars  between  two  other  nations,  or  between  con- 
tending parties  recognized  as  belligerents,  but  its  opera- 
tion is  not  necessarily  dependent  on  the  existence  of  such 
state  of  belligerency,"  and  the  consideration  of  the  present 
case  arising  under  section  5283  confirms  us  in  the  view 
thus  expressed. 

It  is  true  that  in  giving  a  resume  of  the  sections,  we 
referred  to  section  5283  as  dealing  "with  fitting  out  and 
arming  vessels  in  this  country  in  favor  of  one  foreign 
power  as  against  another  foreign  power  with  which  we 
are  at  peace,"  but  that  was  matter  of  general  description, 
and  the  entire  scope  of  the  section  was  not  required  to  be 
indicated. 


24 
usually  called     The  title  is  headed  "Neutrality,"  and  usually  called  by 

Neutrality  Act.  .  ~  7  " 

way  of  convenience  the      .Neutrality  Act,     as  the  term 

"Foreign  Enlistment  Act"  is  applied  to  the  analogous 

British  statute,  but  this  does  not  operate  as  a  restriction. 

Distinction  be-     Neutrality,  strictly  speaking,  consists  in  abstinence  from 

tween  neutrality  .    .         .  ...  .  .    .,  ,    . 

and  duty  toward  any  participation  in  a  public,  private  or  civil  war,  and  in 


impartiality  of  conduct  toward  both  parties,  but  the  main- 

disturbed 

tenance  unbroken  of  peaceful  relations  between  two  powers 
when  the  domestic  peace  of  one  of  them  is  disturbed  is  not 
neutrality  in  the  sense  in  which  the  word  is  used  when  the 
disturbance  has  acquired  such  head  as  to  demand  the 
recognition  of  belligerency.  And,  as  mere  matter  of 
municipal  administration,  no  nation  can  permit  unauthor- 
ized acts  of  war  within  its  territory  in  infraction  of  its 
sovereignty,  while  good  faith  towards  friendly  nations 
requires  their  prevention. 

Hence,  as  Mr.  Attorney  General  Hoar  pointed  out,  13 
Opinions,  177,  178,  though  the  principal  object  of  the  act 
was  "to  secure  the  performance  of  the  duty  of  the  United 
States,  under  the  law  of  nations,  as  a  neutral  nation  in 
respect  of  foreign  powers,"  the  act  is  nevertheless  an  act 
"to  punish  certain  offences  against  the  United  States  by 
fines,  imprisonment  and  forfeitures,  and  the  act  itself 
defines  the  precise  nature  of  those  offences." 

These  sections  were  brought  forward  from  the  act  of 
April  20,  1818,  3  Stat.  447,  c.  88,  entitled  "An  act  in  addi- 
tion to  the  'Act  for  the  punishment  of  certain  crimes 
against  the  United  States,'  and  to  repeal  the  acts  therein 
mentioned,"  which  was  derived  from  the  act  of  June  5, 
1794,  1  Stat.  381,  c.  50,  entitled  "An  act  in  addition  to  the 
'Act  for  the  punishment  of  certain  crimes  against  the 
United  States,'  "  and  the  act  of  March  3,  1817,  3  Stat.  370, 
c.  58,  entitled  "An  act  more  effectually  to  preserve  the 
neutral  relations  of  the  United  States." 

The  piracy  act  of  March  3,  1819,  3  Stat.  510,  c.  77,  Rev. 
Stat.  §§  4293,  4294,  4295,  4296,  5368,  supplemented  the 
acts  of  1817  and  1818. 

The  act  of  1794,  which  has  been  generally  recognized  as 
the  first  instance  of  municipal  legislation  in  support  of  the 
obligations  of  neutrality,  and  a  remarkable  advance  in  the 
development  of  International  Law,  was  recommended  to 
Congress  by  President  Washington  in  his  annual  address 
on  December  3,  1793;  was  drawn  by  Hamilton;  and  passed 
the  Senate  by  the  casting  vote  of  Vice  President  Adams. 
Ann.  3d  Cong.  11,  67.  Its  enactment  grew  out  of  the 


25 

proceedings  of  the  then  French  minister,  which  called 
forth  President  Washington's  proclamation  of  neutrality 
in  the  spring  of  1793.  And  though  the  law  of  nations  had 
been  declared  by  Chief  Justice  Jay,  in  his  charge  to  the 
grand  jury  at  Richmond,  May  22,  1793  (Wharton's  State 
Trials,  49,  56),  and  by  Mr.  Justice  Wilson,  Mr.  Justice 
Iredell  and  Judge  Peters,  on  the  trial  of  Hentield  in  July 
of  that  year  (Id.  66,  84),  to  be  capable  of  being  enforced 
in  the  courts  of  the  United  States  criminal  h',  as  well  as 
civilly,  without  further  legislation,  yet  it  was  deemed 
advisable  to  pass  the  act  in  view  of  controversy  over  that 
position,  and,  moreover,  in  order  to  provide  a  compre- 
hensive code  in  prevention  of  acts  by  individuals  within 
our  jurisdiction  inconsistent  with  our  own  authorit}7  as 
well  as  hostile  to  friendly  powers. 

Section  5283  of  the  Revised  Statutes  is  as  follows: 

"Every  person  who,  within  the  limits  of  the  United,' section  5283  of 

~,  the    Neutrality 

States,  fits  out  and  arms,  or  attempts  to  fit  out  and  arm,  Act- 
or  procures  to  be  fitted  out  and  armed,  or  knowingly  is 
concerned  in  the  furnishing,  fitting  out  or  arming  of  any 
vessel  with  intent  that  such  vessel  shall  be  employed  in 
the  service  of  any  foreign  prince  or  state,  or  of  any  col- 
ony, district  or  people,  to  cruise  or  commit  hostilities 
against  the  subjects,  citizens  or  property  of  any  foreign 
prince  or  state,  or  of  any  colony,  district  or  people,  with 
whom  the  United  States  are  at  peace,  or  who  issues  or 
delivers  a  commission  within  the  territoiy  or  jurisdiction 
of  the  United  States,  for  any  vessel,  to  the  intent  that  she 
ma}7  be  so  employed,  shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  more  than  ten  thousand 
dollars,  and  imprisoned  not  more  than  three  years.  And 
every  such  vessel,  her  tackle,  apparel  and  furniture,  to- 
gether with  all  materials,  arms,  ammunition  and  stores, 
which  may  have  been  procured  for  the  building  and  equip- 
ment thereof,  shall  be  forfeited;  one  half  to  the  use  of  the 
informer,  and  the  other  half  to  the  use  of  the  United 
States." 

By  referring  to  section  three  of  the  act  of  June  5,  1794, 
section  one  of  the  act  of  1817,  and  section  three  of  the  act 
of  1818,  which  are  given  in  the  margin,1  it  will  be  seen 

1  Act  of  June  5,  1794:  "SEC.  3.  That  if  any  person  shall,  within  the  Act  of  1794. 
ports,  harbors,  bays,  rivers  or  other  waters  of  the  United  States,  fit 
out  and  arm  or  attempt  to  fit  out  and  arm  or  procure  to  be  fitted  out 
and  armed,  or  shall  knowingly  be  concerned  in  the  furnishing,  fitting 
out  or  arming  of  any  ship  or  vessel  with  intent  that  such  ship  or 
vessel  shall  be  employed  in  the  service  of  any  foreign  prince  or  state 


26 

that  the  words  "  or  of  any  colony,  district  or  people"  were 
inserted  in  the  original  law  by  the  act  of  1817,  carried 
forward  by  the  act  of  1818,  and  so  into  section  5283. 
paswg?°of°Vhe  ^ne  immediate  occasion  of  the  passage  of  the  act  of 
March  3,  1817,  appears  to  have  been  a  communication, 
under  date  of  December  20,  1816,  from  the  Portuguese 
minister  to  Mr.  Monroe,  then  Secretary  of  State,  inform- 
ing him  of  the  fitting  out  of  privateers  at  Baltimore  to  act 
against  Portugal,  in  case  it  should  turn  out  that  that  Gov- 
ernment was  at  war  with  the  "self-styled  Government  of 
Buenos  Ayres,"  and  soliciting  "the  proposition  to  Con- 
gress of  such  provisions  of  law  as  will  prevent  such  attempts 
for  the  future."  On  December  26,  1816,  President  Mad- 
ison sent  a  special  message  to  Congress,  in  which  he 
referred  to  the  inefficacy  of  existing  laws  "to  prevent 
violations  of  the  obligations  of  the  United  States  as  a 
nation  at  peace  towards  belligerent  parties  and  other  unlaw- 
ful acts  on  the  high  seas  by  armed  vessels  equipped  within 
the  waters  of  the  United  States,"  and,  "with  a  view  to 
maintain  more  effectually  the  respect  due  to  the  laws,  to 
the  character,  and  to  the  neutral  and  pacific  relations  of 
the  United  States,"  recommended  further  legislative  pro- 

to  cruise  or  commit  hostilities  upon  the  subjects,  citizens  or  property 
of  another  foreign  prince  or  state  with  whom  the  United  States  are  at 
peace,  or  shall  issue  or  deliver  a  commission  within  the  territory  or 
jurisdiction  of  the  United  States  for  any  ship  or  vessel  to  the  intent 
that  she  may  be  employed  as  aforesaid,  every  such  person  so  offending 
shall  upon  conviction  be  adjudged  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  and  imprisoned  at  the  discretion  of  the  court  in  which 
the  conviction  shall  be  had,  so  as  the  fine  to  be  imposed  shall  in  no 
case  be  more  than  five  thousand  dollars  and  the  term  of  imprisonment 
shall  not  exceed  three  years,  and  every  such  ship  or  vessel  with  her 
tackle,  apparel  and  furniture  together  with  all  materials,  arms, 
ammunition,  and  stores  which  may  have  been  procured  for  the  build- 
ing and  equipment  thereof  shall  be  forfeited,  one  half  to  the  use  of  any 
person  who  shall  give  information  of  the  offence  and  the  other  half  to 
the  use  of  the  United  States." 

Act  of  1817.  Act  of  March  3,  1817,  c.  58,  3  Stat.  370:  "That  if  any  person  shall, 
within  the  limits  of  the  United  States,  fit  out  and  arm,  or  attempt  to 
fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or  shall  know- 
ingly be  concerned  in  the  furnishing,  fitting  out  or  arming,  of  any 
such  ship  or  vessel,  with  intent  that  such  ship  or  vessel  shall  be 
employed  in  the  service  of  any  foreign  prince  or  state,  or  of  any 
colony,  district  or  people  to  cruise  or  commit  hostilities,  or  to  aid  or 
cooperate  in  any  warlike  measure  whatever,  against  the  subjects,  citi- 
zens or  property,  of  any  prince  or  state,  or  of  any  colony,  district  or 
people  with  whom  the  United  States  are  at  peace,  every  such  person 
so  offending  shall,  upon  conviction,  be  adjudged  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  and  imprisoned  at  the  discretion  of  the 


27 

visions.  This  message  was  transmitted  to  the  minister 
December  27,  and  he  was  promptly  officially  informed  of 
the  passage  of  the  act  in  the  succeeding  month  of  March. 
Geneva  Arbitration,  Case  of  the  United  States,  138.  In 
Mr.  Dana's  elaborate  note  to  §  439  of  his  edition  of  Whea- 
ton,  it  is  said  that  the  words  " colony,  district  or  people" 
were  inserted  on  the  suggestion  of  the  Spanish  minister  » 
that  the  South  American  provinces  in  revolt  and  not  recog-  or  people." 
nized  as  independent  might  not  be  included  in  the  word 
"state."  Under  the  circumstances  this  act  was  entitled 
as  "to  preserve  the  neutral  relations  of  the  United  States," 
while  the  title  of  the  act  of  1794  described  it  as  "in  addi 
tion  "  to  the  Crimes  Act  of  April  30,  1790,  1  Stat.  112, 
c.  9,  and  the  act  of  1818  was  entitled  in  the  same  way. 
But  there  is  nothing  in  all  this  to  indicate  that  the  words 
"colony,  district  or  people"  had  reference  solely  to  com- 
munities whose  belligerency  had  been  recognized,  and  the 
history  of  the  times,  an  interesting  review  of  which  has 
been  furnished  us  by  the  industry  of  counsel,  does  not  sus- 
tain the  view  that  insurgent  districts  or  bodies,  unrecog- 
nized as  belligerents,  were  not  intended  to  be  embraced. 
On  the  contrary,  the  reasonable  conclusion  is  that  the  inser- 

court  in  which  the  conviction  shall  be  had,  so  as  the  fine  to  be 
imposed  shall  in  no  case  be  more  than  ten  thousand  dollars,  and  the 
term  of  imprisonment  shall  not  exceed  ten  years;  and  every  such  ship 
or  vessel,  with  her  tackle,  apparel  and  furniture,  together  with  all 
materials,  arms,  ammunition  and  stores  which  may  have  been  pro- 
cured for  the  building  and  equipment  thereof,  shall  be  forfeited,  one 
half  to  the  use  of  any  person  who  shall  give  information,  and  the 
other  half  to  the  use  of  the  United  States." 

Act  of  April  20,  1818,  3  Stat.  447:  "SEC.  3.  That  if  any  person  shall,  Act  of  1818 
within  the  limits  of  the  United  States,  fit  out  and  arm,  or  attempt  to 
fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or  shall  know- 
ingly be  concerned  in  the  furnishing,  fitting  out  or  arming,  of  any 
ship  or  vessel  with  intent  that  such  ship  or  vessel  shall  be  employed 
in  the  service  of  any  foreign  prince  or  state,  or  of  any  colony,  district 
or  people,  to  cruise  or  commit  hostilities  against  the  subjects,  citizens 
or  property  of  any  foreign  prince  or  state,  or  of  any  colony,  district  or 
people,  with  whom  the  United  States  are  at  peace,  or  shall  issue 
or  deliver  a  commission  within  the  territory  or  jurisdiction  of  the 
United  States,  for  any  ship  or  vessel,  to  the  intent  that  she  may  be 
employed  as  aforesaid,  every  person  so  offending  shall  be  deemed 
guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  more  than  ten 
thousand  dollars,  and  imprisoned  not  more  than  three  years;  and 
every  such  ship  or  vessel,  with  her  tackle,  apparel  and  furniture, 
together  with  all  materials,  arms,  ammunition  and  stores,  which  may 
have  been  procured  for  the  building  and  equipment  thereof,  shall 
be  forfeited;  one  half  to  the  use  of  the  informer,  and  the  other  half 
to  the  use  of  the  United  States." 


28 

tion  of  the  words  "district  or  people "'  should  be  attributed 
to  the  intention  to  include  such  bodies,  as  for  instance,  the 
so-called  Oriental  Republic  of  Artigas,  and  the  Govern- 
ments of  Petion  and  Christophe,  whose  attitude  had  been 
passed  on  by  the  courts  of  New  York  more  than  a  year 
before  in  Gelston  v.  ffoyt,  13  Johns.  141,  561,  which  was 
then  pending  in  this  court  on  writ  of  error.  There  was  no 
reason  why  they  should  not  have  been  included,  and  it  is 
to  the  extended  enumeration  as  covering  revolutionary 
bodies  laying  claim  to  rights  of  sovereignty,  whether  rec- 
ognized or  unrecognized,  that  Chief  Justice  Marshall  man- 
ifestly referred  in  saying,  in  The  Gran  Para,  7  Wheat., 
471,  489,  that  the  act  of  1817  ''adapts  the  previous  laws  to 
the  actual  situation  of  the  world."  At  all  events.  Congress 
imposed  no  limitation  on  the  words  "colony,  district  or 
people"  by  requiring  political  recognition. 

thtPwOTdsi°Ico(i-  0^  course  a  political  community  whose  independence 
°eo'' ieV*trict  orhas  been  recognized  is  a  "state"  under  the  act;  and,  if  a 
body  embarked  in  a  revolutionary  political  movement, 
whose  independence  has  not  been,  but  whose  belligerency 
has  been,  recognized,  is  also  embraced  by  that  term,  then 
the  words  "colony,  district  or  people,"  instead  of  being 
limited  to  a  political  community  which  has  been  recognized 
as  a  belligerent,  must  necessarily  be  held  applicable  to  a 
body  of  insurgents  associated  together  in  a  common  poli- 
tical enterprise  and  carrying  on  hostilities  against  the 
parent  country,  in  the  effort  to  achieve  independence, 
although  recognition  of  belligerency  has  not  been  accorded. 
And  as  agreeably  to  the  principles  of  international  law 
and  the  reason  of  the  thing,  the  recognition  of  bellige- 
renc}7,  while  not  conferring  all  the  rights  of  an  independent 
state,  concedes  to  the  Government  recognized  the  rights, 
and  imposes  upon  it  the  obligations,  of  an  independent 
state  in  matters  relating  to  the  war  being  waged,  no  ade- 
quate ground  is  perceived  for  holding  that  acts  in  aid  of 
such  a  Government  are  not  in  aid  of  a  state  in  the  sense  of 
the  statute. 

Contemporaneous  decisions  are  not  to  the  contrary, 
though  they  throw  no  special  light  upon  the  precise 
question. 

Geistonv.  Hoyt.  Gelston  v.  Hoyt,  3  Wheat.  246  decided  at  February  term, 
1818  (and  below  January  and  February ,  1816),  was  an  action 
of  trespass  against  the  collector  and  surveyor  of  the  port 
of  New  York  for  seizing  the  ship  American  Eagle,  her 
tackle,  apparel,  etc.  The  seizure  was  made  July  10,  1810, 


29 

by  order  of  President  Madison,  under  section  three  of  the 
:u-t  of  1794,  corresponding  to  section  5283.  The  ship  was 
intended  for  the  service  of  Petion  against  Christophe, 
who  had  divided  the  island  of  Hayti  between  them  and 
were  engaged  in  a  bloody  contest,  but  whose  belligerency 
had  not  been  recognized.  It  was  held  that  the  service  of 
"any  foreign  prince  or  state  "  imported  a  prince  or  state 
which  had  been  recognized  by  the  Government,  and  as 
there  was  no  recognition  in  any  manner,  the  question 
whether  the  recognition  of  the  belligerency  of  a  de  facto 
sovereignty*  would  bring  it  within  those  words,  did  not 
arise. 

The  case  of  Tl»<>  E*trvll<t*  4  Wheat.  298,  involved  the 
capture  of  a  Venezuelan  privateer  on  April  24,  1817. 
There  was  a  recapture  by  an  American  vessel,  and  the 
prize  thus  came  before  the  court  at  New  Orleans  for  adju- 
dication. The  privateer  was  found  to  have  a  regular  com- 
mission from  Bolivar,  issued  as  early  as  1816,  but  it  had 
violated  section  two  of  the  act  of  1794,  which  is  the  same 
us  section  two  of  the  act  of  1818,  omitting  the  words 
" colon y,  district  or  people"  (and  is  now  section  5282  of 
the  Revised  Statutes),  by  enlisting  men  at  New  Orleans, 
provided  Venezuela  was  a  state  within  the  meaning  of 
that  act.  The  decision  proceeded  on  the  ground  that 
Venezuela  was  to  be  so  regarded  on  the  theory  that  recog- 
nition of  belligerency  made  the  belligerent  to  that  intent 
a  state. 

In  The.  Nuew  Anna  <nnl  /./V,,v,  0  Wheat.  193,  the 
record  of  a  prize  court  at  "Galveztown,"  constituted  under 
the  authority  of  the  ''Mexican  Republic, "  was  offered  in 
proof,  and  this  court  refused  to  recognize  the  belligerent 
right  claimed,  because  our  Government  had  not  acknowl- 
edged "the  existence  of  anv  Mexican  Republic  or  state  at 
war  with  Spain;"  and  in  Th<-  finm  l*<ir<i*  7  Wheat.  471, 
Chief  Justice  Marshall  referred  to  Buenos  Ay  res  as  a  state 
within  the  meaning  of  the  act  of  1794. 

Kven  if  the  word  "state"  as  previously  employed  ad- 
mitted of  a  less  liberal  signification,  why  should  the  mean- 
ing of  the  words  "colonv,  district  or  people"  be  con  fined  "Coionv,  district 

r       r  or  people. 

only  to  parties  recognized  as  belligerent?  Neither  of  these 
words  is  used  equivalent  to  the  word  ".state,"  for  they 
were  added  to  enlarge  the  scope  of  a  statute  which  already 
contained  that  word.  The  statute  does  not  say  f<>r<-'njn 
colony,  district  or  people,  nor  was  it  necessary,  for  the 
reference  is  to  that  which  is  part  of  the  dominion  of  a 


30 

foreign  prince  or  state,  though  acting  in  hostility  to  such 
prince  or  state.  Nor  are  the  words  apt  if  confined  to  a 
belligerent.  As  argued  by  counsel  for  the  Government, 
an  insurgent  colony  under  the  act  is  the  same  before  as 
after  the  recognition  of  belligerency,  as  shown  by  the  in- 
stance of  the  colonies  of  Buenos  Ay  res  and  Paraguay,  the 
belligerency  of  one  having  been  recognized  but  not  of  the 
other,  while  the  statute  was  plainly  applicable  to  both. 
Nor  is  district  an  appropriate  designation  of  a  recognized 
power  de  facto,  since  such  a  power  would  represent  not 
the  territory  actually  held  but  the  territory  covered  by 
the  claim  of  sovereignty.  And  the  word  "people,"  when 
not  used  as  the  equivalent  of  state  or  nation,  must  apply 
to  a  body  of  persons  less  than  a  state  or  nation,  and  this 
meaning  would  be  satisfied  by  considering  it  applicable  to 
any  consolidated  political  body. 

In  United  States  v.  Quincy,  6  Pet.  445,  467,  an  indict- 
ment under  the  third  section  of  the  act  of  1818,  the  court 
disposed  of  the  following,  among  other  points,  thus:  "The 
last  instruction  or  opinion  asked  on  the  part  of  the  defend- 
ant was:  That  according  to  the  evidence  in  the  cause,  the 
United  Provinces  of  Rio  de  la  Plata  is,  and  was  at  the 
time  of  the  offence  alleged  in  the  indictment,  a  government 
acknowledged  by  the  United  States,  and  thus  was  a  '  state' 
and  not  a  'people'  within  the  meaning  of  the  act  of  Con- 
gress under  which  the  defendant  is  indicted;  the  word 
'people'  in  that  act  being  intended  to  describe  communi- 
ties under  an  existing  government  not  recognized  by  the 
United  States;  and  that  the  indictment  therefore  can  not 
be  supported  on  this  evidence 

"The  indictment  charges  that  the  defendant  was  con- 
cerned in  fitting  out  the  Bolivar  with  intent  that  she  should 
be  employed  in  the  service  of  a  foreign  'people;'  that  is 
to  say,  in  the  service  of  the  United  Provinces  of  Rio  de  la 
Plata.  It  was  in  evidence,  that  the  United  Provinces  of 
Rio  de  la  Plata  had  been  regularly  acknowledged  as  an 
independent  nation  by  the  Executive  Department  of  the 
Government  of  the  United  States  before  the  year  1827. 
And  therefore  it  is  argued  that  the  word  '  people '  is  not 
properly  applicable  to  that  nation  or  power. 

"The  objection  is  one  purely  technical,  and  we  think 
not  well  founded.  The  word  'people,'  as  here  used,  is 
merely  descriptive  of  the  power  in  whose  service  the  ves- 
sel was  intended  to  be  employed;  and  it  is  one  of  the  de- 
nominations applied  by  the  act  of  Congress  to  a  foreign 
power.  The  words  are,  '  in  the  service  of  any  foreign 


31 

prince  or  state,  or  of  any  colony,  district  or  people/ 
The  application  of  the  word  '  people '  is  rendered  suffi- 
ciently certain  by  what  follows  under  the  videlicet,  '  that 
is  to  say,  the  United  Provinces  of  Rio  de  la  Plata.'  This 
particularizes  that  which  by  the  word  '  people '  is  left  too 
general.  The  descriptions  are  no  way  repugnant  or  in- 
consistent with  each  other,  and  may  well  stand  together. 
That  which  comes  under  the  videlicet  only  serves  to  ex- 
plain what  is  doubtful  and  obscure  in  the  word  'people.'" 

All  that  was  decided  was  that  any  obscurity  in  the  word 
"people"  as  applied  to  a  recognized  government  was 
cured  by  the  videlicet. 

NeMtt  v.  Lushington,  4  T.  R.  783,  was  an  action  on  a  €njg*f  v>  Lush' 
policy  of  insurance  in  the  usual  form,  and  among  the  perils 
insured  against  were  "pirates,  rovers,  thieves,"  and 
"arrests,  restraints  and  detainments  of  all  kings,  princes 
and  people  of  what  nation,  condition,  or  quality  soever." 
The  vessel  with  a  cargo  of  corn  was  driven  into  a  port  and 
was  seized  by  a  mob  who  assumed  the  government  of  her 
and  forced  the  captain  to  sell  the  corn  at  a  low  price.  It 
was  ruled  that  this  was  a  loss  by  pirates,  and  the  maxim 
noscitur  a  sociis  was  applied  by  Lord  Kenyon  and  Mr. 
Justice  Buller.  Mr.  Justice  Duller  said :  "  '  People '  means 
the  supreme  power;  'the  power  of  the  countr}7,'  whatever 
it  may  be.  This  appears  clear  from  another  part  of  the 
policy;  for  where  the  underwriters  insure  against  the 
wrongful  acts  of  individuals,  they  describe  them  by  the 
name  of  'pirates,  rogues,  thieves;'  then  having  stated  all 
the  individual  persons,  against  whose  acts  they  engage, 
they  mention  other  risks,  those  occasioned  by  the  acts  of 
'kings,  princes,  and  people  of  what  nation,  condition,  or 
quality  soever.'  Those  words  therefore  must  apply  to 
'nations'  in  their  collective  capacky." 

As  remarked  in  the  brief  of  Messrs.  Richard  H.  Dana,  Jr. , 
and  Horace  Gray,  Jr. ,  filed  by  Mr.  Cushing  in  Mauran  v. 
Insurance  Co.,  6  Wall.  1,  the  words  were  "doubtless 
originally  inserted  with  the  view  of  enumerating  all  pos- 
sible forms  of  government,  monarchical,  aristocratical, 
and  democratic." 

The  British  Foreign  Enlistment  Act,  69,  Geo.  Ill,  c.  69, 
was  bottomed  on  the  act  of  1818,  and  the  seventh  section, 
the  opening  portion  of  which  is  given  below,1  corre- 

1  "That  if  any  person,  within  any  part  of  the  United  Kingdom,  or  in 
any  part  of  His  Majesty's  dominions-  beyond  the  seas,  shall,  without 
the  leave  and  license  of  His  Majesty  for  that  purpose  first  had  and 
obtained  as  aforesaid,  equip,  furnish,  fit  out  or  arm,  or  attempt  or 


32 

sponded  to  the  third  section  of  that  act.  Its  terms  were, 
however,  considerably  broader  and  left  less  to  construc- 
tion. But  we  think  the  words  "colon}',  district  or  peo- 
ple" must  be  treated  as  equally  comprehensive  in  their 
bearing  here. 

The  Salvador.  In  the  cage  of  Tfo  Salvador,  L.  R.  3,  P.  C.  218,  the 
Salvador  had  been  seized  under  warrant  of  the  governor 
of  the  Bahama  Islands  and  proceeded  against  in  the  Vice 
Admiralty  Court  there  for  breach  of  that  section,  and  was, 
upon  the  hearing  of  the  cause,  ordered  to  be  restored,  the 
court  not  being  satisfied  that  the  vessel  was  engaged, 
within  the  meaning  of  the  section,  in  aiding  parties  in 
insurrection  against  a  foreign  government,  as  such  parties 
did  not  assume  to  exercise  the  powers  of  government  over 
any  portion  of  the  territory  of  such  government.  This 
decision  was  overruled  on  appeal  by  the  Judicial  Com- 
mittee of  the  Privy  Council,  and  Lord  Cairns,  delivering 
the  opinion,  said:  "It  is  to  be  observed  that  this  part  of 
the  section  is  in  the  alternative.  The  ship  may  be 
employed  in  the  service  of  a  Foreign  Prince.  State,  or 
Potentate,  or  Foreign  State,  Colony,  Province  or  part  of 
any  Province  or  People;  that  is  to  say,  if  you  find  any 
consolidated  body  in  the  Foreign  State,  whether  it  be  the 
Potentate,  who  has  the  absolute  dominion,  or  the  Govern- 
ment, or  a  part  of  the  Province  or  of  the  People,  or  the 
whole  of  the  Province  or  the  People  acting  for  themselves, 
that  is  sufficient.  But  by  way  of  alternative  it  is  sug- 
gested that  there  may  be  a  case  where,  although  you  can 

endeavor  to  equip,  furnish,  fit  out  or  arm,  or  procure  to  be  equipped, 
furnished,  fitted  out  or  armed,  or  shall  knowingly  aid,  assist  or  be  con- 
cerned in  the  equipping,  furnishing,  fitting  out  or  arming  of  any  Ship 
or  Vessel  with  intent  or  in  order  that  such  Ship  or  Vessel  shall  be 
employed  in  the  service  of  any  Foreign  Prince,  State  or  Potentate,  or 
of  any  Foreign  Colony,  Province  or  part  of  any  Province  or  People, 
or  of  any  Person  or  Persons  exercising  or  assuming  to  exercise  any ' 
powers  of  Government  in  or  over  any  Foreign  State,  Colony,  Province 
or  part  of  any  Province  or  People,  as  a  transport  or  store  ship,  or  with 
intent  to  cruise  or  commit  hostilities  against  any  Prince,  State  or 
Potentiate,  or  against  the  subjects  or  citizens  of  any  Prince,  State  or 
Potentate,  or  against  the  persons  exercising  or  assuming  to  exercise 
the  powers  of  Government  in  any  Colony,  Province  or  part  of  any 
Province  or  Country,  or  against  the  inhabitants  of  any  Foreign  Colony, 
Province  or  part  of  any  Province  or  Country,  with  whom  His  Majesty 
shall  not  then  be  at  war;  or  shall,  within  the  United  Kingdom,  or 
any  of  His  Majesty's  dominions,  or  in  any  Settlement,  Colony,  Terri- 
tory, Island  or  place  belonging  or  subject  to  His  Majesty,  issue  or 
deliver  any  Commission  for  any  Ship  or  Vessel,  to  the  intent  that  such 
Ship  or  Vessel  shall  be  employed  as  aforesaid,"  etc. 


33 

not  say  that  the  Province,  or  the  People,  or  a  part  of  the 
Province  or  People  are  employing  the  ship,  there  yet  may 
be  some  person  or  persons  who  ma}'  be  exercising,  or 
assuming  to  exercise,  powers  of  Government  in  the 
Foreign  Colony  or  State,  drawing  the  whole  of  the  mate- 
rial aid  for  the  hostile  proceedings  from  abroad;  and, 
therefore,  by  way  of  alternative,  it  is  stated  to  be  sufficient, 
if  you  find  the  ship  prepared  or  acting  in  the  service  of 
'  any  person  or  persons  exercising,  or  assuming  to  exercise, 
any  powers  of  Government  in  or  over  any  Foreign  State, 
Colony,  Province  or  part  of  any  Province  or  People' ;  but 
that  alternative  need  not  be  resorted  to,  if  you  find  the 
ship  is  fitted  out  and  armed  for  the  purpose  of  being 
'employed  in  the  service  of  any  Foreign  State  or  People, 
or  part  of  any  Province  or  People.'  .  .  . 

"It  may  be  (it  is  not  necessary  to  decide  whether  it  is 
or  not)  that  you  could  not  state  who  were  the  person  or 
persons,  or  'that  there  were  any  person  or  persons 
exercising,  or  assuming  to  exercise,  powers  of  Gov- 
ernment in  Cuba,  in  opposition  to  the  Spanish  authorities. 
That  may  be  so:  their  Lordships  express  no  opinion  upon 
that  subject,  but  they  will  assume  that  there  might  be  a 
difficulty  in  bringing  the  case  within  that  second  alterna- 
tive of  the  section;  but  their  Lordships  are  clearly  of 
opinion,  that  there  is  no  difficulty  in  bringing  the  case 
under  the  first  alternative  of  the  section,  because  their 
Lordships  find  these  propositions  established  beyond 
all  doubt, — there  was  an  insurrection  in  the  island  of 
Cuba;  there  were  insurgents  who  had  formed  themselves 
into  a  body  of  people  acting  together,  undertaking  and 
conducting  hostilities;  these  insurgents,  beyond  all  doubt, 
formed  part  of  the  Province  or  People  of  Cuba;  and 
beyond  all  doubt  the  ship  in  question  was  to  be  employed, 
and  was  employed,  in  connection  with  and  in  the  service 
of  this  body  of  insurgents." 

We  regard  these  observations  as  entirely  apposite,  and 
while  the  word  ''people"  may  mean  the  entire  body  of  jn^e  Neutrality 
the  inhabitants  of  a  state;  or  the  state  or  nation  collect- 
ively in  its  political  capacity;  or  the  ruling  power  of  the 
country;  its  meaning  in  this  branch  of  the  section  taken 
in  connection  with  the  words  "colony"  and  "district," 
covers,  in  our  judgment  any  insurgent  or  insurrectionary 
"body  of  people  acting  together,  undertaking  and  con- 
ducting hostilities,"  although  its  belligerency  has  not  been 
recogni/ed.  Nor  is  this  view  otherwise  than  confirmed 
2056—04 3 


34 

by  the  use  made  of  the  same  words  in  the  succeeding-  part 
of  the  sentence,  for  they  are  there  employed  in  another 
connection,  that  is,  in  relation  to  the  cruising,  or  the  com- 
mission of  hostilities,  "against  the  subjects,  citizens  or 
property  of  any  foreign  prince  or  state,  or  of  any  colon}-, 
district  or  people,  with  whom  the  United  States  are  at 
peace;"  and,  as  thus  used,  are  affected  by  obviously  dif- 
ferent considerations.  If  the  necessity  of  recognition  in 
respect  of  the  objects  of  hostilities,  by  sea  or  land,  were 
conceded,  that  would  not  involve  the  concession  of  such 
necessity  in  respect  of  those  for  whose  service  the  vessel 
is  fitted  out. 
Recognition  of  Any  other  conclusion  rests  on  the  unreasonable  assump- 

belligerency   in-  J 

curs  certain  re-  tion  that  the  act  is  to  remain  ineffectual  unless  the  Gov- 

straints  and  lia- 
bilities, ernment  incurs  the  restraints  and  liabilities  incident  to  an 

acknowledgment  of  belligerency.  On  the  one  hand,  pecun- 
iary demands,  reprisals  or  even  war,  may  be  the  conse- 
quence of  failure  in  the  performance  of  obligations  toward 
a  friendly  power,  while  on  the  other,  the  recognition  of 
belligerenc\7  involves  the  rights  of  blockade,  visitation, 
search  and  seizure  of  contraband  articles  on  the  high  seas 
and  abandoment  of  claims  for  reparation  on  account  of 
damages  suffered  by  our  citizens  from  the  prevalence  of 
warfare. 

No  intention  to  circumscribe  the  means  of  avoiding-  the 
one  by  imposing  as  a  condition  the  acceptance  of  the  con- 
tingencies of  the  other  can  be  imputed. 

emfheis  breecoer-     Belligerency  is  recognized  when  a  political  struggle  has 
nized-  attained  a  certain  magnitude  and  affects  the  interest  of 

the  recognizing  power;  and  in  the  instance  of  maritime 
operations,  recognition  may  be  compelled,  or  the  vessels 
of  the  insurgents,  if  molesting  third  parties,  may  be  pur- 
sued as  pirates.  The  Ambrose  Liyht,  25  Fed.  Rep.  408;  3 
Whart.  Dig.  Int.  Law,  §  381;  and  authorities  cited. 

But  it  belongs  to  the  political  department  to  determine 

when  belligerenc}7  shall  be  recognized,  and  its  action  must 

be  accepted  according  to  the  terms  and  intention  expressed. 

Distinction  be-     The  distinction  between  recognition  of  belligerency  and 

tween     recogni-  ..  .  •          t«  •      i  i_ 

tion  of  beiiiger-  recognition  of  a  condition  of  political   revolt,   between 

ency  and  of  con-  ",   .  .  ...  .    i 

dition  of  revolt,  recognition  of  the  existence  of  war  in  a  material  sense  and 
of  war  in  a  legal  sense,  is  sharply  illustrated  by  the  case 
before  us.  For  here  the  political  department  has  not 
recognized  the  existence  of  a  de  facto  belligerent  power 
engaged  in  hostility  with  Spain,  but  has  recognized  the 


35 

existence  of  insurrectionary  warfare  prevailing  before,  at 
the  time  and  since  this  forfeiture  is  alleged  to  have  been 
incurred. 

On  June  12,  1895,  a  formal  proclamation  was  issued  by  Proclamation 
the  President  and  countersigned  by  the  Secretary  of  State,  fn  junePi895den 
informing  the  people  of  the  United  States  that  the  island 
of  Cuba  was  *'  the  seat  of  serious  civil  disturbances  accom- 
panied by  armed  resistance  to  the  authority  of  the  estab- 
lished government  of  Spain,  a  power  with  which  the 
United  States  are  and  desire  to  remain  on  terms  of  peace 
and  amity  ";  declaring  that  "  the  laws  of  the  United  States 
prohibit  their  citizens,  as  well  as  all  others  being  within 
and  subject  to  their  jurisdiction,  from  taking  part  in  such 
disturbances  adversely  to  such  established  government, 
by  accepting  or  exercising  commissions  for  warlike  service 
against  it,  by  enlistment  or  procuring  others  to  enlist  for 
such  service,  by  fitting  out  or  arming  or  procuring  to  be 
fitted  out  and  armed  ships  of  war  for  such  service,  by  aug- 
menting the  force  of  any  ship  of  war  engaged  in  such 
service  and  arriving  in  a  port  of  the  United  States,  and 
by  setting  on  foot  or  providing  or  preparing  the  means 
for  military  enterprises  to  be  carried  on  from  the  United 
States  against  the  territory  of  such  government'11;  and 
admonishing  all  such  citizens  and  other  persons  to  abstain 
from  any  violation  of  these  laws. 

In  his  annual  message  of  December  2,  1895,  the  Presi-    President's 

message,  Decem- 

dent  said:  "Cuba  is  again  gravely  disturbed.  An  insur- ber,  1895. 
rection.  in  some  respects  more  active  than  the  last 
preceding  revolt,  which  continued  from  1868  to  18T8,  now 
exists  in  a  large  part  of  the  eastern  interior  of  the  island, 
menacing  even  some  populations  on  the  coast.  Besides 
deranging  the  commercial  exchanges  of  the  island,  of 
which  our  country  takes  the  predominant  share,  this  fla- 
grant condition  of  hostilities,  by  arousing  sentimental  sym- 
pathy and  inciting  adventurous  support  among  our  people, 
has  entailed  earnest  effort  on  the  part  of  this  Government 
to  enforce  obedience  to  our  neutrality  laws  and  to  prevent 
the  territory  of  the  United  States  from  being  abused  as  a 
vantage  ground  from  which  to  aid  those  in  arms  against 
Spanish  sovereignty. 

"  Whatever  ma}-  be  the  traditional  sympathy  of  our 
countrymen  as  individuals  with  a  people  who  seem  to  be 
struggling  for  larger  autonomy  and  greater  freedom, 
deepened  as  such  sympathy  natural!}*  must  be  in  behalf  of 


36 

our  neighbors,  yet  the  plain  duty  of  their  Government  is  to 
observe  in  good  faith  the  recognized  obligations  of  interna- 
tional relationship.  The  performance  of  this  dut}7  should 
not  be  made  more  difficult  by  a  disregard  on  the  part  of  our 
citizens  of  the  obligations  growing  out  of  their  allegiance 
to  their  countr}7,  which  should  restrain  them  from  violating 
as  individuals  the  neutrality  which  the  nation  of  which 
they  are  members  is  bound  to  observe  in  its  relations  to 
friendly  sovereign  states.  Though  neither  the  warmth 
of  our  people's  sympathy  with  the  Cuban  insurgents,  nor 
our  loss  and  material  damage  consequent  upon  the  futile 
endeavors  thus  far  made  to  restore  peace  and  order,  nor 
any  shock  our  humane  sensibilities  ma}'  have  received  from 
the  cruelties  which  appear  to  especialh'  characterize  this 
sanguinary  and  tiercel}7  conducted  war,  have  in  the  least 
shaken  the  determination  of  the  Government  to  honestly 
fulfill  every  international  obligation,  yet  it  is  to  be  earn- 
estly hoped,  on  every  ground,  that  the  devastation  of 
armed  conflict  may  speedily  be  stayed  and  order  and  quiet 
restored  to  the  distracted  island,  bringing  in  their  train 
the  activity  and  thrift  of  peaceful  pursuits." 

July  27,  1896,  a  further  proclamation  was  promulgated, 
and  in  the  annual  message  of  December  7,  1896,  the  Presi- 
dent called  attention  to  the  fact  that  "the  insurrection  in 
Cuba  still  continues  with  all  its  perplexities,"  and  gave  an 
extended  review  of  the  situation. 
Neutrality  Act  \\re  are  thus  judicially  informed  of  the  existence  of  an 

applies    without  ... 

recognition     of  actual  conflict  of  arms  in  resistance  of  the  authority  of  a 

belligerency. 

government  with  which  the  United  States  are  on  terms  of 
peace  and  amity,  although  acknowledgment  of  the  insur- 
gents as  belligerents  by  the  political  department  has  not 
taken  place,  and  it  can  not  be  doubted  that,  this  being  so, 
the  act  in  question  is  applicable. 

We  see  no  justification  for  importing  into  section  5283 
words  which  it  does  not  contain  and  which  would  make  its 
operation  depend  upon  the  recognition  of  belligerency; 
and  while  the  libel  might  have  been  drawn  with  somewhat 
greater  precision,  we  are  of  opinion  that  it  should  not  have 

been  dismissed. 

******* 

Mr.  JUSTICE  HARLAX  dissenting. 

•»  *  ***** 


37 


CASE  OF  UNDERBILL  v.  HERNANDEZ. 

(Vol.  168,  United  States  Reports,  p.  250.     Decided  Nov.  29,  1897.    MR.  CHIEF  JUSTICE 
FULLER  delivered  the  opinion  of  the  court.) 

Statement  by  MR.  CHIEF  JUSTICE  FULLER: 

In  the  early  part  of  1892  a  revolution  was  initiated  in  statement  of 
Venezuela  against  the  administration  thereof,  which  the 
revolutionists  claimed  had  ceased  to  be  the  legitimate  gov- 
ernment. The  principal  parties  to  this  conflict  were  those 
who  recognized  Palacio  as  their  head  and  those  who  fol- 
lowed the  leadership  of  Crespo.  General  Hernandez 
belonged  to  the  anti-administration  party,  and  commanded 
its  forces  in  the  vicinity  of  Ciudad  Bolivar.  On  the  8th 
of  August,  1892,  an  engagement  took  place  between  the 
armies  of  the  two  parties  at  Buena  Vista,  some  7  miles 
from  Bolivar,  in  which  the  troops  under  Hernandez  pre- 
vailed, and  on  the  13th  of  August,  Hernandez  entered 
Bolivar  and  assumed  command  of  the  city.  All  of  the 
local  officials  had  in  the  meantime  left,  and  the  vacant 
positions  were  filled  by  General  Hernandez,  who  from 
that  date  and  during  the  period  of  the  transactions  com- 
plained of  was  the  civil  and  military  chief  of  the  city  and 
district.  In  October  the  party  in  revolt  had  achieved 
success  generally,  taking  possession  of  the  capital  of  Ven- 
ezuela October  6,  and  on  October  23,  1892,  the  Crespo 
government,  so  called,  was  formally  recognized  as  the 
legitimate  government  of  Venezuela  by  the  United  States. 

George  F.  Underbill  was  a  citizen  of  the  United  States, 
who  hud  constructed  a  waterworks  system  for  the  cit\'  of 
Bolivar  under  a  contract  with  the  government,  and  was 
engaged  in  supplying  the  place  with  water,  and  he  also 
carried  on  a  machinery  repair  business.  Some  time  after 
the  entry  of  General  Hernandez,  Underbill  applied  to  him 
as  the  officer  in  command  for  a  passport  to  leave  the  city. 
Hernandez  refused  .this  request,  and  requests  made  by 
others  in  Underbill's  behalf,  until  October  18,  when  a 
passport  was  given  and  Underbill  left  the  country. 

This  action  was  brought  to  recover  damages  for  the 
detention  caused  by  reason  of  the  refusal  to  grant  the 
passport;  for  the  alleged  confinement  of  Underbill  to  his 
own  house;  and  for  certain  alleged  assaults  and  affronts  by 
the  soldiers  of  Hernandez's  army. 

The  cause  was  tried  in  the  circuit  court  of  the  United 
States  for  the  eastern  district  of  New  York,  and  on  the 


38 

statement  ofconclusion  of  plaintiff's  case,  the  circuit  court  ruled  upon 
the  facts  plaintiff  was  not  entitled  to  recover,  and  directed 
a  verdict  for  defendant  on  the  ground  that  '*  because  the 
acts  of  the  defendant  were  those  of  a  military  commander, 
representing  a  de  facto  government  in  the  prosecution  of  a 
war,  he  was  not  civilly  responsible  therefor."  Judgment 
having  been  rendered  for  defendant,  the  case  was  taken  to 
the  circuit  court  of  appeals,  and  by  that  court  affirmed 
upon  the  ground  "'that  the  acts  of  the  defendant  were  the 
acts  of  the  government  of  Venezuela,  and  as  such  are  not 
properly  the  subject  of  adjudication  in  the  courts  of 
another  government.'-  26  U.  S.  App.  573.  Thereupon 
the  cause  was  brought  to  this  court  on  certiorari. 

MR.  CHIEF  JUSTICE  FULLER  delivered  the  opinion  of 
the  Court: 

sitC^nr%digment     Every  sovereign  state  is  bound  to  respect  the  independ- 
mentkiga<- tY  of ence  °^  every  other  sovereign  state,  and  the  courts  of  one 
wuhin^heir^wn  countlT  w^  no^  s^  m  judgment  on  the  acts  of  the  govern- 
ment of  another  done  within  its  own  territory.     Redress 
of  grievances  by  reason  of  such  acts  must  be  obtained 
through  the  means  open  to  be  availed  of  by  sovereign 
powers  as  between  themselves. 
Principle  not      \,TOr  can  the  principle  be  confined  to  lawful  or  recog- 

conflned   to  rec-     .  ® 

ognized  govern-  nized  governments,  or  to  cases  where  redress  can  mani- 

ments. 

festl}'  be  had  through  public  channels.  The  immunity  of 
individuals  from  suits  brought  in  foreign  tribunals  for 
acts  d«one  within  their  own  states,  in  the  exercise  of  gov- 
ernmental authority,  whether  as  civil  officers  or  as  mili- 
tary commanders,  must  necessarily  extend  to  the  agents 
of  governments  ruling  by  paramount  force  as  matter  of 
Application  of  fact.  Where  a  civil  war  prevails,  that  is,  where  the  peo- 

principle  in  civil  ,..,,.  ., 

wars.  pie  ot  a  country  are  divided  into  two  hostile  parties,  who 

take  up  arms  and  oppose  one  another  by  military  force, 
generally  speaking  foreign  nations  do  not  assume  to  judge 
.  the  merits  of  the  quarrel.     If  the  party  seeking  to  dis- 

lodge the  existing  government  succeeds,  and  the  inde- 
pendence of  the  government  it  has  set  up  is  recognized, 
then  the  acts  of  such  government  from  the  commence- 
ment of  its  existence  are  regarded  are  those  of  an  inde- 
pendent nation.  If  the  political  revolt  fails  of  success, 
still  if  actual  war  has  been  waged,  acts  of  legitimate  Avar- 
fare  cannot  be  made  the  basis  of  individual  liability. 
United  States  v.  Rice,  IT  U.  S.  4  Wheat.  246;  Fleming 
v.  Page,  50  U.  S.  9  How.  603:  Thorington  v.  Smith,  75 


39 


U.  S.  8  Wall  1;    TJ  '////<////*  v.    lim/u,  96  U.  S.  176; 

v.  Suryet  97  U.  S.  594;  Dmv  v.  JoJtnxon,  100  LI.  S.  158, 

and  other  cases. 

Revolutions  or  insurrections  may  inconvenience  other 
nations,  but  by  accommodation  to  the  facts  the  applica- 
tion  of  settled  rules  is  'readily  reached.  And  where  the 
fact  of  the  existence  of  war  is  in  issue  in  the  instance  of 
complaint  of  acts  committed  within  foreign  territory,  it  is 
not  an  absolute  prerequisite  that  that  fact  should  be  made 
out  b}7  an  acknowledgment  of  belligerency,  as  other  offi- 
cial recognition  of  its  existence  may  be  sufficient  proof 
thereof.  The  Three  Friends,  166  U.  S.  1.  . 

In  this  case,  the  archives  of  the  state  department  show    conditions   in 

.        tnis  case. 

that  civil  war  was  flagrant  in  Venezuela  from  the  spring 
of  1892;  that  the  revolutionary  government  was  recog- 
nized by  the  United  States  as  the  government  of  the  coun- 
try. it  being,  to  use  the  language  of  the  Secretary  of 
State  in  a  communication  to  our  minister  to  Venezuela, 
4  'accepted  by  the  people,  in  the  possession  of  the  power 
of  the  nation  and  full}"  established." 

That  these  were  facts  of  which  the  court  is  bound  to 
take  judicial  notice,  and  for  information  as  to  which  it 
may  consult  the  Department  of  State,  there  can  be  no 
doubt.  Jones  v.  United  States,  137  U.  S.  202;  Mighell 
v.  Sultan  ofJohor^  1  Q.  B.  149. 

It  is  idle  to  argue  that  the  proceedings  of  those  who 
thus  triumphed  should  be  treated  as  the  acts  of  banditti 
or  mere  mobs. 

We  entertain  no  doubt  upon  the  evidence  that  Hernan- 
dez was  carrying  on  military  operations  in  support  of  the 
revolutionary  party.  It  ma\-  be  that  adherents  of  that 
side  of  the  controversy  in  the  particular  locality  where 
Hernandez  was  the  leader  of  the  movement  entertained  a 
preference  for  him  as  the  future  executive  head  of  the 
nation,  but  that  is  beside  the  question.  The  acts  com-  Defendants 
plained  of  were  the  acts  of  a  military  commander  repre-  military  com 

.  ,  ,        .  .       ,  .       .  mander   of   suc- 

.sentmg   the    authoritv   or    the   revolutionary  partv  as  acessfui    party. 

...       %  ,  ,     ,  ,  afterwards  rec- 

government,  which  afterward  succeeded  and  was  recog-  ognized  by  umt- 
nized  by  the  United  States.  We  think  the  circuit  court 
of  appeals  was  justified  in  concluding  kt  that  the  acts  of  the 
defendant  were  the  acts  of  the  government  of  Venezuela, 
and  as  such  are  not  proper!}'  the  subject  of  adjudication  in 
the  courts  of  another  government." 

The  decisions  cited  on  plaintiff's  behalf  are  not  in  point. 
Cases  respecting  arrests  by  military  authority  in  the 


40 

absence  of  the  prevalence  of  war,  or  the  validity^  of  con- 
tracts between  individuals  entered  into  in  aid  of  insurrec- 
tion, or  the  right  of  revolutionary  bodies  to  vex  the  com- 
merce of  the  world  on  its  common  highway  without  incur- 
ring the  penalties  denounced  on  piracy,  and  the  like — do 
not  involve  the  questions  presented  here. 

We  agree  with  the  circuit  court  of  appeals,  that  ''the 
evidence  upon  the  trial  indicated  that  the  purpose  of  the 
defendant  in' his  treatment  of  the  plaintiff  was  to  coerce 
the  plaintiff  to  operate  his  waterworks  and  his  repair 
works  for  the  benefit  of  the  communit}1  and  the  revolu- 
tionary forces,."  and  that  "it  was  not  sufficient  to  have 
warranted  a  finding  by  the  jury  that  the  defendant  was 
actuated  by  malice  or  any  personal  or  private  motive;" 
and  we  concur  in  its  disposition  of  the  rulings  below. 
Tlie  decree  of  the  Circuit  Court  is  affirmed. 


CASE  OF  THE  OLINDE  RODRIGUES. 

(Vol.  174,  United  States  Reports.    Decided  May  15, 1899.    MR.  CHIEF  JUSTICE  Fn.r.ER 
delivered  the  opinion  of  the  court.) 

statement  of  This  was  a  libel  tiled  by  the  United  States  against  the 
steamship  Olinde  Rodrigues  and  cargo  in  the  District  Court 
for  South  Carolina,  in  a  prize  cause,  for  violation  of  the 
blockade  of  San  Juan,  Porto  Rico.  The  steamship  was 
owned  and  claimed  by  La  Compagnie  Generale  Transat 
lantique,  a  French  corporation. 

The  Olinde  Rodrigues  left  Havre  June  16,  1898,  upon  a 
regular  voyage  on  a  West  Indian  itinerary  prescribed  by 
the  terms  of  her  postal  subvention  from  the  French  Govern 
rnent.  Her  regular  course,  after  touching  at  Paulliac. 
France,  was  St.  Thomas,  San  Juan,  Port  au  Platte  or  Puerto 
Plata,  Cape  Haitien,  St.  Marque,  Port  au  Prince,  Gonaives, 
and  to  return  by  the  same  ports,  the  voyage  terminating  at 
Havre.  The  proclamation  of  the  President  declaring  San 
Juan  in  a  state  of  blockade  was  issued  June  27, 1898.  The 
Olinde  Rodrigues  left  Paulliac  June  19,  and  arrived  at  St. 
Thomas  July  3,  1898,  and  on  July  4,  in  the  morning,  went 
into  San  Juan,  Porto  Rico.  She  was  seen  by  the  United 
States  auxiliary  cruiser  Yosemite,  then  blockading  the 
port  of  San  Juan. 

On  the  fifth  of  July,  1898,  the  Olinde  Rodrigues  came 
out  of  the  port  of  San  Juan,  was  signaled  by  the  Yosemite, 
and  on  communicating  with  the  latter  asserted  that  she 


41 
had  no  knowledge  of  the  blockade  of  San  Juan.     There-    statement    of 

t*  as  /•     i       -\r  •  1-11        the  case. 

upon  a  boarding;  officer  ot  the  losemite  entered  in  the  log 
of  the  Olinde  Rodrigues  an  official  warning  of  the  block 
ade,  and  she  went  on  her  way  to  Puerto  Plata  and  other 
ports  of  San  Domingo  and  Haiti.  She  left  Puerto  Plata 
on  her  return  from  these  ports,  July  16,  1898,  and  on  the 
morning  of  July  17  was  captured  by  the  United  States 
armored  cruiser  New  Orleans,  then  blockading  the  port  of 
San  Juan,  as  attempting  to  enter  that  port.  A  prize  crew 
was  put  on  board  and  the  vessel  was  taken  to  Charleston, 
South  Carolina,  where  she  was  libelled,  as  before  stated, 
July  22,  1898.  Depositions  of  officers,  crew  and  persons 
on  board  the  steamship  were  taken  by  the  prize  commis- 
sioners inpreparatorio,  in  answer  to  certain  standing  inter- 
rogatories, and  the  papers  and  documents  found  on  board 
were  put  in  evidence.  Depositions  of  officers  and  men 
from  the  cruiser  New  Orleans  were  also  taken  de  bene  esse, 
but  were  not  considered  on  the  preliminary  hearing  except 
on  a  motion  by  the  District  Attorne}"  for  leave  to  take 
further  proofs. 

The  cause  having  been  heard  on  the  evidence  in  prepara- 
ttit'io,  the  District  Judge  ruled,  August  13,  for  reasons 
given,  that  the  Olinde  Rodrigues  could  not,  under  the  evi- 
dence as  it  stood,  be  condemned  for  her  entry  into  the 
blockaded  port  of  San  Juan  on  July  4,  and  her  departure 
therefrom  July  5,  1898;  nor  for  attempting  to  enter  the 
same  port  on  July  IT;  but  that  the  depositions  debenc 
justified  an  order  allowing  further  proofs,  and  stated  also 
that  an  order  might  be  entered,  "  discharging  the  vessel 
upon  stipulation  for  her  value,  should  the  claimant  so  elect. n 
89  Fed.  Rep.  1<>5.  An  order  was  accordingly  entered  that 
the  captors  have  ninety  days  to  supply  further  proof  "as 
to  the  entry  of  the  'Olinde  Rodrigues'  into  the  port  of 
San  Juan,  Porto  Rico,  on  Jul\T4, 1898,  and  as  to  the  courses 
and  movements  of  said  vessel  on  July  17,  ISDN;  "  and  "that 
the  claimants  may  thereafter  have  such  time  to  otter  testi- 
mony in  reply  us  may  seem  proper  to  the  court." 

The  cargo  was  released  without  bond,  and  on  Septem- 
ber 16  the  court  entered  an  order  releasing  the  vessel  on 
"  elaimants  giving  bond  by  the  Compagnie  ( Jenerale  Trans  - 
atlantique,  its  owners,  without  sureties,  in  the  sum  of 
$125,000  conditioned  for  the  payment  of  $125,000  upon 
the  order  of  the  court  in  the  event  that  the  vessel  should 
be  condemned."  The  bond  was  not  given,  and  the  vessel 
remained  in  custody. 


42 

statement    of     Evidence  was  taken  on  behalf  of  the  United  States,  and 

the  case,  ...  -111. 

the  cause  came  on  for  hearing  on  a  motion  by  the  claimants 
for  the  discharge  and  restitution  of  the  steamship  on  the 
grounds:  (1)  That  the  blockade  of  San  Juan  at  the  time  of 
the  capture  of  the  Olinde  Rodrigues  was  not  an  effective 
blockade;  (2)  that  the  Olinde  Rodrigues  was  not  violating 
the  blockade  when  seized. 

The  District  Court  rendered  an  opinion  December  13, 
1898,  holding  that  the  blockade  of  San  Juan  was  not  an 
effective  blockade,  and  entered  a  decree  ordering  the  resti- 
tution of  the  ship  to  the  claimants.  91  Fed.  Rep.  274. 
From  this  decree  the  United  States  appealed  to  this  court 
and  assigned  errors  to  the  effect:  (1)  That  the  court  erred 
in  holding  that  there  was  no  effective  blockade  of  the  port 
of  San  Juan  on  Juhr  17,  1898;  (2)  that  the  court  erred  in 
not  finding  that  the  Olinde  Rodrigues  was  captured  while 
she  was  violating  the  blockade  of  San  Juan,  Juhr  17, 1898, 
and  in  not  decreeing  her  condemnation  as  lawful  prize. 

MR.  CHIEF  JUSTICE  FULLER  delivered  the  opinion  of 
the  Court: 

opinion  We  are  unable  to  concur  with  the  learned  District  Judge 

in  the  conclusion  that  the  blockade  of  .the  port  of  San  Juan 
at  the  time  this  steamship  was  captured  was  not  an  effective 
blockade. 

biocildeenot  do6  To  be  binding,  the  blockade  must  be  known,  and  the 
fhepresence'oVa  blockading  force  must  be  present;  but  is  there  any  rule 
particular  force.  of  jaw  determining  that  the  presence  of  a  particular  force 
is  essential  in  order  to  render  a  blockade  effective?  We 
do  not  think  so,  but  on  the  contrary,  that  the  test  is 
whether  the  blockade  is  practicall}'  effective,  and  that  that 
is  a  question,  though  a  mixed  one,  more  of  fact  than  of  law. 
The  fourth  maxim  of  the  Declaration  of  Paris,  (April 
16,  1856,)  was:  "Blockades,  in  order  to  be  binding,  must 
be  effective,  that  is  to  say,  maintained  by  a  force  sufficient 
really  to  prevent  access  to  the  coast  of  the  enemy." 
Manifestly  this  broad  definition  was  not  intended  to  be 
literally  applied.  The  object  was  to  correct  the  abuse,  in 
the  early  part  of  the  century,  of  paper  blockades,  where 
extensive  coasts  were  put  under  blockade  by  proclamation, 
without  the  presence  of  any  force,  or  an  inadequate  force; 
and  the  question  of  what  might  be  sufficient  force  was 
necessarily  left  to  be  determined  according  to  the  particu- 
lar circumstances. 


43 

This  was  put  by  Lord  Russell  in  his  note  to  Mr.  Mason .  various  opm- 
of  February  10, 1861,  thus:  "The  Declaration  of  Paris  was 
,  in  truth  directed  against  what  were  once  termed  '  paper 
blockades;'  that  is,  blockades  not  sustained  by  any  actual 
force,  or  sustained  by  a  notoriously  inadequate  naval  force, 
such  as  an  occasional  appearance  of  a  man-of-war  in  the 
offing  or  the  like.  .  .  .  The  interpretation,  therefore, 
placed  by  Her  Majesty's  government  on  the  Declaration 
was,  that  a  blockade,  in  order  to  be  respected  by  neutrals, 
must  be  practically  effective.  ...  It  is  proper  to  add, 
that  the  same  view  of  the  meaning  and  effect  of  the  arti- 
cles of  the  Declaration  of  Paris,  on  the  subject  of  block- 
ades, which  is  above  explained,  was  taken  by  the  repre- 
sentative of  the  United  States  at  the  Court  of  St.  James 
(Mr.  Dallas)  during  the  communications  which  passed 
between  the  two  governments  some  years  before  the  pres- 
ent war,  with  a  view  to  the  accession  of  the  United  States 
to  that  Declaration."  Hall's  Int.  Law,  §  260,  p.  730,  note. 

The  quotations  from  the  Parliamentary  debates,  of 
May,  1861,  given  by  Mr.  Dana  in  note  233  to  the  eighth 
edition  of  Wheaton  on  International  Law,  afford  interest- 
ing illustrations  of  what  was  considered  the  measure  of 
effectiveness;  and  an  extract  is  also  there  given  from  a 
note  of  the  Department  of  Foreign  Affairs  of  France  of 
September,  1861,  in  which  that  is  defined:  "Forces  suffi- 
cient to  prevent  the  ports  being  approached  without  expo- 
sure to  a  certain  danger." 

In  The  Mercurim.  1  C.  Rob.  80,  84,  Sir  William  Scott  The xercurius. 
.stated:  "  It  is  said,  this  passage  to  the  Zuyder  Zee  was  not 
in  a  state  of  blockade;  but  the  ship  was  seized  immediately 
on  entering  it;  and  I  know  not  what  else  is  necessary  to 
constitute  blockade.  The  powers  who  formed  the  armed 
neutrality  in  the  last  war,  understood  blockade  in  this 
sense;  and  Russia,  who  was  the  principal  party  in  that 
confederacy,  described  a  place  to  be  in  a  state  of  blockade, 
when  it  is  dangerous  to  attempt  to  enter  into  it." 

And  in  The  Frederick  Molke,  1  C.  Rob.  86,  the  same  Tiie  Frederick 
great  jurist  said:  "For  that  a  legal  blockade  did  exist, 
results  necessarily  from  these  facts,  as  nothing  farther  is 
necessary  to  constitute  blockade,  than  that  there  should 
be  a  force  stationed  to  prevent  communication,  and  a  due 
notice,  or  prohibition  given  to  the  party." 

Such  is  the  settled  doctrine  of  the  English  and  Ameri- 
can courts  and  publicists,  and  it  is  embodied  in  the  second 


of  the  instructions  issued  by  the  Secretary  of  the  Maw, 
June  20,  1898,  General  Order  No.  492:  "A  blockade  to  be 
effective  and  binding  must  be  maintained  by  a  force  suffi- 
cient to  render  ingress  to  or  egress  from  the  port 
dangerous." 

Clearly,  however,  it  is  not  practicable  to  define  what 
degree  of  danger  shall  constitute  a  test  of  the  efficiency 
and  validity  of  a  blockade.  It  is  enough  if  the  danger  is 
real  and  apparent. 

The  Frandska.  In  The  Franciskci,  2  Spinks,  128,  Dr.  Lushington,  in 
passing  on  the  question  whether  the  blockade  imposed  on 
the  port  of  Riga  was  an  effective  blockade,  said:  "  What, 
then,  is  an  efficient  blockade,  and  how  has  it  been  denned, 
if,  indeed,  the  term  definition  can  be  applied  to  such  a 
subject?  The  one  definition  mentioned  is  that  egress  or 
entrance  shall  be  attended  with  evident  danger;  another, 
that  of  Chancellor  Kent,  1  Kent's  Com.  140,  is,  that  it 
shall  be  apparently  dangerous.  All  these  definitions  are 
and  must  be,  from  the  nature  of  blockades,  loose  and 
uncertain;  the  maintenance  of  a  blockade  must  always  be 
a  question  of  degree, — of  the  degree  of  danger  attending 
ships  going  into  or  leaving  a  blockaded  port.  Nothing  is 
further  from  my  intention,  nor,  indeed,  more  opposed  to 
nry  notions  of  the  Law  of  Nations,  than  any  relaxation  of 
the  rule  that  a  blockade  must  be  efficiently  maintained; 
but  it  is  perfectly  obvious  that  no  force  could  bar  the 
entrance  to  absolute  certainty;  that  vessels  may  get  in  and 
get  out  during  the  night,  or  fogs,  or  violent  winds,  or 
occasional  absence;  that  it  is  most  difficult  to  judge  from 
numbers  alone."" 

Quotation  from  "It  is  impossible,"  say s  Mr.  Hall,  (S  260,)  "to  fix  with 
any  accuracy  the  amount  of  danger  in  entry  which  is 
neccessary  to  preserve  the  validity  of  a  blockade.  It  is 
for  the  prize  courts  of  the  belligerent  to  decide  whether 
in  a  given  instance  a  vessel  captured  for  its  breach  had 
reason  to  suppose  it  to  be  non-existent;  or  for  the  neutral 
government  to  examine,  on  the  particular  facts,  whether 
it  is  proper  to  withhold  or  to  withdraw  recognition." 
j.  In  The  Hoffnung,  6  C.  Rob.  112,  117,  Sir  Walter  Scott 
said:  "When  a  squadron  is  driven  off  by  accidents  of 
weather,  which  must  have  entered  into  the  contemplation 
of  the  belligerent  imposing  the  blockade,  there  is  no  reason 
to  suppose  that  such  a  circumstance  would  create  a  change 
of  system,  since  it  could  not  be  expected  than  any  blockade 


45 

would  continue  many  months,  without  being  liable  to  such 
temporary  interruptions.  But  when  a  squadron  is  driven 
off  by  a  superior  force,  a  new  course  of  events  arises, 
which  may  tend  to  a  very  different  disposition  of  the 
blockading  force,  and  which  introduces  therefore  a  very 
different  train  of  presumptions,  in  favor  of  the  ordinary 
freedom  of  commercial  speculations.  In  such  a  case  the 
neutral  merchant  is  not  bound  to  foresee  or  to  conjecture 
that  the  blockade  will  be  resumed."  And  undoubtedly  a 
blockade  may  be  so  inadequate,  or  the  negligence  of  the 
belligerent  in  maintaining  it  ma}'  be  of  such  a  character, 
as  to  excuse  neutral  vessels  from  the  penalties  for  its 
violation.  Thus  in  the  case  of  an  alleged  breach  of  the 
blockade  of  the  island  of  Martinique,  which  had  been 
carried  on  by  a  number  of  vessels  on  the  different  stations, 
so  communicating  with  each  other  as  to  be  able  to  intercept 
all  vessels  attempting  to  enter  the  ports  of  the  island,  it 
was  held  that  their  withdrawal  was  a  neglect  which  "  neces- 
sarily led  neutral  vessels  to  believe  these  ports  might  be 
entered  without  incurring  any  risk.''  The  Nancy,  1  Acton, 
57,  59. 

But  it  can  not  be  that  a  vessel  actually  captured  in  at- 
tempting to  enter  a  blockaded  port,  after  warning  entered 
on  her  log  by  a  cruiser  off  that  port  only  a  few  days  before, 
could  dispute  the  efficiency  of  the  force  to  which  she  was 
subjected. 

As  we  hold  than  an  effective  blockade  is  a  blockade  so   Effectiveness  of 

.  ....  ,  blockades. 

effective  as  to  make  it  dangerous  in  fact  for  vessels  to 
attempt  to  enter  the  blockaded  port,  it  follows  that  the 
question  of  effectiveness  is  not  controlled  by  the  number 
of  the  blockading  force.  In  other  words,  the  position  can 
not  be  maintained  that  one  modern  cruiser  though  sufficient 
in  fact  is  not  sufficient  as  matter  of  law. 

Even  as  long  ago  as  1809,  in  The  Nancy,  1  Acton,  63.    °.ne,  vessel  can 

»  maintain   effect- 

where  the  station  of  the  vessel  was  sometimes  off  the  port ive  blockade. 

of  Trinity  and,  at  others,  off  another  port  more  than  seven 
miles  distant,  it  was  ruled  that:  "Under  particular  cir- 
cumstances a  single  vessel  ma}'  be  adequate  to  maintain 
the  blockade  of  one  port  and  co-operate  with  other  vessels 
at  the  same  time  in  the  blockade  of  another  neighboring 
port;"  although  there  Sir  William  Grant  relied  on  the 
opinion  of  the  commander  on  that  station  that  the  force 
was  completely  adequate  to  the  service  required  to  be 
performed. 


46 

Ruling  of  Dr.      The  ruling  of  Dr.  Lushington  in  The  Fra.ncixka.  above 

Lushington.  .  '  ° 

cited,  was  to  that  enect,  and  the  text-books  refer  to  other 
instances. 

The  learned  District  Judge,  in  his  opinion;  refers  to 
the  treaty  between  France  and  Denmark  of  1742,  which 
provided  that  the  entrance  to  a  blockaded  port  should  be 
closed  by  at  least  two  vessels  or  a  battery  on  shore;  to  the 
treaty  of  1760  between  Holland  and  the  Two  Sicilies  pre- 
scribing that  at  least  six  ships  of  war  should  be  ranged  at 
a  distance  slightly  greater  than  gunshot  from  the  entrance; 
and  to  the  treaty  between  Prussia  and  Denmark  of  1818, 
which  stipulated  that  two  vessels  should  be  stationed 
before  every  blockaded  port;  but  we  do  not  think  these 
particular  agreements  of  special  importance  here,  and. 
indeed,  Ortolan,  by  whom  they  are  cited,  says  that  such 
stipulations  cannot  create  a  positive  rule  in  all  cases  even 
between  the  parties,  "since  the  number  of  vessels  heces- 
san'  to  a  complete  investment  depends  evidently  on  the 
nature  of  the  place  blockaded."  2  Ortolan.  (4th  ed.)  330, 
and  note  2. 

Nor  do  we  regard  Sir  William  Scott's  judgment  in  The 
Arthur  (1814),  1  Dodson,  423,  425,  as  of  weight  in  favor 
of  claimants.  In  effect  the  ruling  sustained  the  validity 
of  the  maintenance  of  blockade  by  a  single  ship,  and  the 
case  was  thus  stated :  * '  This  is  a  claim  made  by  one  of  His 
Majesty's 'ships  to  share  as  joint-captor  in  a  prize  taken  in 
the  river  Ems  by  another  ship  belonging  to  His  Majesty, 
for  a  breach  of  the  blockade  imposed  by  the  order  in 
council  of  the  26th  of  April,  1809.  This  order  was, 
among  others,  issued  in  the  way  of  retaliation  for  the 
measures  which  had  been  previously  adopted  by  the 
French  government  against  the  commerce  of  this  country. 
The  blockade  imposed  by  it  is  applicable  to  a  very  great 
extent  of  coast,  and  was  never  intended  to  be  maintained 
according  to  the  usual  and  regular  mode  of  enforcing- 
blockades,  by  stationing  a  number  of  ships,  and  forming- 
as  it  were  an  arch  of  circumvallation  around  the  mouth  of 
the  prohibited  port.  There,  if  the  arch  fails  in  any  one 
part,  the  blockade  itself  fails  altogether;  but  this  species 
of  blockade,  which  has  arisen  out  of  the  violent  and  unjust 
conduct  of  the  enemy,  was  maintained  by  a  ship  stationed 
anywhere  in  the  neighborhood  of  the  coast,  or,  as  in  this 
case,  in  the  river  itself,  observing  and  preventing  every 
vessel  that  might  endeavor  to  effect  a  passage  up  or  down 
the  river/' 


47 
Blockades  are  maritime  blockades,  or  blockades  by  sea    Different  kinds 

.  .  .        of  blockade. 

and  land;  and  the}'  may  be  either  military  or  commercial, 
or  may  partake  of  the  nature  of  both.  The  question  of 
effectiveness  must  necessarily  depend  on  the  circum- 
stances. We  agreee  that  the  fact  of  a  single  capture  is 
not  decisive  of  the  effectiveness  of  a  blockade,  but  the 
case  made  on  this  record  does  not  rest  on  that  ground. 

We  are  of  opinion  that  if  a  single  modern  cruiser  block- ,  Blockade  ef- 
fective if  one. 

ading  a  port  renders  it  in  fact  dangerous  for  other  craft  «™is(>r  renders 

&       -l  entrance    dan- 

to  enter  the   port,  that  is  sufficient,   since   thereby   the  serous, 
blockade  is  made  practically  effective. 

What  then  were  the  facts  as  to  the  effectiveness  of  the 
blockade  in  the  case  before  us? 

In  the  proclamation  of  June  27,  1898,  occurs  this  para- 
graph: "The  United  States  of  America  has  instituted  and 
will  maintain  an  effective  blockade  of  all  ports  on  the 
south  coast  of  Cuba,  from  Cape  Frances  to  Cape  Cruz, 
inclusive,  and  also  of  the  port  of  San  Juan,  in  the  island 
of  Porto  Rico."  (Proclamation  No.  11,  30  Stat.  34.)  The 
blockade  thus  announced  was  not  of  the  coast  of  Porto 
Rico,  but  of  the  port  of  San  Juan,  a  town  of  less  than 
25,000  inhabitants,  on  the  northern  coast  of  Porto  Ricor 
with  a  single  entrance.  From  June  27  to  July  14,  1898, 
the  Yosemite,  a  merchant  ship  converted  into  an  auxiliary 
cruiser,  blockaded  the  port.  Her  maximum  speed  was 
fifteen  and  one-half  knots;  and  her  armament  te,h  5-inch 
rapid  firing  guns,  six  6-pounders,  two  1-pounders,  with 
greatest  rano-e  of  three  and  one-half  miles.  While  the  conditions  off 

*  San  Juan. 

losemite  was  blockading  the  port  she  ran  the  armed 
transport  Antonio  Lopez  aground  six  miles  from  San 
Juan;  gave  a  number  of  neutral  vessels  official  notice  of 
the  blockade;  warned  off  many  from  the  port;  and  on  the 
5th  of  July,  1898,  wrote  into  the,  log  of  the  Olinde  Rod- 
rigues,  off  San  Juan,  the  official  warning  of  the  blockade 
of  San  Juan.  On  July  14  and  thereafter  the  port  was 
blockaded  b}'  the  armored  cruiser  New  Orleans,  whose 
maximum  speed  was  twent3T-two  knots,  and  her  armament 
six  6-inch  breech-loading  rifles,  four  4.7-inch  breech- 
loading  rifles,  ten  6-pounders,  four  1.5-inch  guns,  cor- 
responding to  3-pounders;  four  3-pounders  in  the  tops; 
four  37-millimeter  automatic  guns,  corresponding  to 
1-pounders.  The  range  of  her  guns  was  live  and  one-half 
sea  miles  or  six  and  a  quarter  statute  miles.  If  stationary  T 
she  could  command  a  circle  of  thirteen  miles  in  diameter; 
if  moving,  at  maximum  speed,  she  could  cover  in  five 


48 

minutes  any  point  on  a  circle  of  seventeen  miles  diameter-, 
and  in  ten  minutes  any  point  on  a  circle  of  nineteen  miles 
diameter;  her  electric  search  lights  could  sweep  the  sea 
by  night  for  ten  miles  distance;  her  motive  power  made 
her  independent  of  winds  and  currents;  in  these  respects 
and  in  her  armament  and  increased  range  of  guns  she  so 
far  surpassed  in  effectiveness  the  old-time  war  ships  that 
it  would  be  inadmissable  to  hold  that  even  if  a  century 
ago  more  than  one  ship  was  believed  to  be  required  for  an 
effective  blockade,  therefore  this  cruiser  was  not  sufficient 
to  blockade  this  port. 

Assuming  that  the  Olinde  Rodrigues  attempted  to  enter 
dangerous.  gan  Juan5  July  17,  there  can  be  no  question  that  it  was 
dangerous  for  her  to  do  so, 'as  the  result  itself  demon- 
strated. She  had  had  actual  warning  twelve  days  before; 
no  reason  existed  for  the  supposition  that  the  blockade 
had  been  pretermitted  or  relaxed;  her  commander  had  no 
right  to  experiment  as  to  the  practical  effectiveness  of  the 
blockade,  and,  if  he  did  so,  he  took  the  risk;  he  was 
believed  to  be  making  the  attempt,  and  was  immediately 
captured.  In  these  circumstances  the  vessel  can  not  be 
permitted  to  plead  that  the  blockade  was  not  legalty 
effective. 

After  the  argument  on  the  motion  to  discharge  the  ves- 
sel, application  was  made  by  counsel  for  the  claimant  to 
the  District  Judge,  by  letter,  that  the  Navy  Department 
be  requested  to  furnish  the  court  with  all  letters  or  dis- 
patches of  the  commanders  of  vessels  blockading  the  port 
of  San  Juan  in  respect  to  the  sufficiency  of  the  force. 
And  a  motion  was  made  in  this  court  "for  an  order  author- 
izing the  introduction  into  the  record  of  the  dispatches  of 
Captain  Sigsbee  and  Commander  Davis,"  dated  June  27, 
1898,  and  July  26,  1898,  and  published  by  the  Navy 
Department  in  the  "Appendix  to  the  Report  of  the  Chief 
of  the  Bureau  of  Navigation,  1898,"  pp.  224,  225,  642. 

To  this,  the  United  States  objected  on  the  grounds  that 
isolated  statements  transmitting  official  information  to 
superior  officers,  and  consisting  largely  of  opinion  and 
hearsay,  were  not  competent  evidence;  that  the  claimants 
had  been  afforded  the  opportunity  to  offer  additional 
proof,  and  had  not  availed  themselves  thereof;  that  if  the 
court  desired  to  have  these  papers  before  it,  then  the  Gov- 
ernment should  be  permitted  to  define  their  meaning  by 
counter  proofs;  and  certain  explanatory  affidavits  were, 


49 

at  the  same  time,  tendered  for  consideration,  if  the  motion 
were  granted. 

We  need  not  specifically  rule  on  the  motion,  or  as  to 
the  adnrissibility  of  either  the  dispatches  or  affidavits,  as 
we  are  satisfied  that  the  dispatches  have  no  legitimate 
tendency  to  establish  that  the  blockade  was  not  effective 
so  far  as  the  exclusion  of  trade  from  th  is  port  of  the  bel- 
ligerent, whether  in  neutral  or  enemy's  trading  ships,  was 
concerned.  This  country  has  always  recognized  the  essen-  Difference  be- 
tial  difference  between  a  military  and  a  commercial  block-  and  commercial 
ade.  The  one  deals  with  the  exclusion  of  trade,  and  the 
other  involves  the  consideration  of  armed  conflict  with  the 
belligerent.  The  necessity  of  a  greater  blockading  force 
in  the  latter  case  than  in  the  former  is  obvious.  The  dif- 
ference is  in  kind,  and  in  degree. 

Our  Government  was  originally  of  opinion  that  com- 
mercial blockades  in  respect  of  neutral  powers  ought  to 
be  done  away  with;  but  that  view  was  not  accepted,  and 
during  the  period  of  the  Civil  War  the  largest  commercial 
blockade  ever  known  was  established.  Dana's  Wheat. 
Int.  Law  (8th  ed.)  p.  671,  note  232;  3  Whart.  Int.  Dig'. 
§361. 

The  letters  of  Captain  Sigsbee,  of  the  St.  Paul,  and  of 
Commander  Davis,  of  the  Dixie,  must  be  read  in  the  light 
of  this  recognized  distinction;  and  it  is  to  be  further 
remarked  that  after  the  letter  of  Captain  Sigsbee  of  June 
27  the  New  Orleans  was  sent  by  Admiral  Sampson  offi- 
cially to  blockade  the  port  of  San  Juan,  thereby  enor- 
mously increasing  its  efficiency. 

In  his  report  of  June  28,  Appendix,  Rep.  Bur.  Nav. 
220,  222,  Captain  Sigsbee  describes  an  attack  on  the  St. 
Paul  off  the  port  of  San  Juan,  June  22,  by  the  Spanish 
cruiser  Isabella  II  and  by  the  torpedoboat  destroyer  Ter- 
ror, in  which  engagement  the  St.  Paul  severely  injured 
the  Terror,  and  drove  the  attacking  force  back  into  San 
Juan,  and  in  his  letter  of  June  27  he  wrote:  "It  is  advis- 
able to  constantly  keep  the  Terror  in  mind  as  a  possible 
active  force;  but,  leaving  her  out  of  consideration,  the 
services  to  be  performed  by  the  Yosemite,  of  blockading 
a  well  fortified  port  containing  a  force  of  enemy's  vessels 
whose  aggregate  force  is  greater  than  her  own,  is  an  espe- 
cially difficult  one.  If  she  permits  herself  to  be  driven 
away  from  the  port,  even  temporarily,  the  claim  may  be 
set  up  that  the  blockade  is  broken." 
O-J 4 


50 

It  is  true  that  in  closing  his  letter  of  June  27  Captain 
Sigsbee  said:  "I  venture  to  suggest  that,  in  order  to  make 
the  blockade  of  San  Juan  positive^  effective,  a  consider- 
able force  of  vessels  is  needed  off  that  port,  enough  to 
detach  some  to  occasionally  cruise  about  the  island.  West 
of  San  Juan  the  coast,  although  bold,*  has  outlying  dan- 
gers, making  it  easy  at  present  for  blockade  runners 
having  local  pilots  to  work  in  close  to  the  port  under  the 
land  during  the  night." 

international-  But  we  are  considering  the  blockade  of  the  port  of  San 
met  by  biockadl  Juan  and  not  of  the  coast,  and  while  additional  vessels  to 
i£gressg  efange°r-  cruise  about  the  island  might  be  desirable  in  order  that 
the  blockade  should  be  positively  effective,  we  think  it  a 
sufficient  compliance  with  the  obligations  of  international 
law  if  the  blockade  made  egress  or  ingress  dangerous  in 
fact,  and  that  the  suggestions  of  a  zealous  American  naval 
commander,  in  anticipation  of  a  conflict  of  armed  forces 
before  San  Juan,  that  the  blockade  should  be  brought  to 
the  highest  efficiency  in  a  military  as  well  as  a  commercial 
aspect,  can  not  be  allowed  to  have  the  effect  of  showing 
that  the  blockade  which  did  exist  was  as  to  this  vessel 
ineffective  in  point  of  law. 

And  the  letter  of  Commander  Davis  of  the  Dixie,  of 
July  26,  1898,  appears  to  us  to  have  been  written  wholty 
from  the  standpoint  of  the  efficiency  of  the  blockade  as  a 
military  blockade.  He  says:  "Captain  Folger  kept  me 
through  the  night  of  the  24th,  as  he  had  information  which 
led  him  to  believe  that  an  attack  would  be  made  on  his 
ship  during  the  night.  There  are  in  San  Juan,  Porto 
Rico,  the  Terror,  torpedo  gunboat;  the  Isabella  II,  cruiser; 
a  torpedo  boat,  and  a  gunboat.  There  is  also  a  German 
steamer,  which  is  only  waiting  an  opportunity  to  slip 
out."  And  further:  " It  is  Captain  Folger's  opinion  that 
the  enemy  will  attempt  to  raise  the  blockade  of  San  Juan, 
and  it  is  my  opinion  that  he  should  be  reinforced  there 
with  the  least  possible  delay." 

The  blockade     In  our  judgment  these  naval  officers  did  not  doubt  the 

effective.uai    as  effectiveness  of  the  commercial  blockade,  and  had  simply 

in  mind  the  desirability  of  rendering  the  blockade,  as  a 

*The  coast  thus  referred  to  is  described  in  a  work  entitled  "Navi- 
gation of  the  Gulf  of  Mexico  and  the  Caribbean  Sea,"  issued  by  the 
Navy  Department,  vol.  I,  342,  thus:  "The  shore  appears  to  be  skirted 
by  a  reef,  inclosing  numerous  small  cays  and  islets,  over  which  the  sea 
breaks  violently,  and  it  should  not  be  approached  within  a  distance  of 
four  miles." 


51 

military  blockade,  impregnable,  b\  the  possession  of  a 
force  sufficient  to  successfully  repel  any  hostile  attack  of 
the  enemy's  fleet.  The  blockade  was  practically  effective; 
had  remained  so;  and  was  legal  and  binding,  if  not  raised 
b^y  an  actual  driving  awa}'  of  the  blockading  force  by  the 
enemy;  until  the  happening  of  which  result  the  neutral 
trader  had  no  right  to  ask  whether  the  blockade,  as  against 
the  possible  superiority  of  the  enemy's  fleet,  was  or  was 
not  effective  in  a  military  sense. 

But  was  this  ship  attempting  to  enter  the  port  of  San 
Juan,  on  the  morning  of  July  17,  when  she  was  captured? 
******* 

On  the  proofs  before  us  the  case  is  this:   The  Olinde.  AS  to  proofs  of 

intent   to    enter 

Rodrigues  was  a  merchant  vessel  of  1675  tons,  belonging San  Juan- 
to  the  Compagnie  Generale  Transatlantic] ue,  engaged  in 
the  West  India  trade  and  receiving  a  subsidy  from  the 
French  government  for  carrying  its  mails  on  an  itinerary 
prescribed  by  the  postal  authorities.  Her  regular  course 
was  from  Havre  to  St.  Thomas,  San  Juan,  Puerto  Plata 
and  some  other  ports,  returning  by  the  same  ports  to  ' 
Havre.  She  sailed  from  Havre,  June  16  and  arrived  at 
St.  Thomas,  July  3,  and  at  San  Juan  the  morning  of  July 
4.  The  proclamation  of  the  blockade  of  San  Juan  was 
issued  June  27,  while  she  was  on  the  sea.  The  United 
States  cruiser  Yosemite  was  on  duty  in  those  waters,  block- 
ading the  port  of  San  Juan,  and  when  her  commander 
sighted  the  Olinde  Rodrigues  coming  from  the  eastward 
toward  the  port  he  made  chase,  but  before  reaching  her 
she  had  turned  in  and  was  under  the  protection  of  the 
shore  batteries.  He  lay  outside  until  the  next  morning — 
the  morning  of  July  5 — when  he  intercepted  the  steamship 
us  she  was  coming  out,  and  sent  an  officer  aboard,  who 
made  this  entry  in  her  log:  "Warned  off  San  Juan,  July 
5th,  1898,  by  U.  S.  S.  Yosemite.  Commander  Emory. 
John  Burns,  Ensign,  U.  S.  Navy."  The  master  of  the 
Olinde  Rodrigues,  whose  testimony  was  taken  inpreporo- 
tofi».  testified  that  when  he  entered  San  Juan,  July  4,  he 
had  no  knowledge  that  the  port  was  blockaded,  and  that 
he  first  heard  of  it  from  the  Yosemite  on  July  5,  when  he 
was  leaving  San  Juan.  After  the  notification  he  continued 
his  voyage  on  the  specified  itinerary,  arriving  at  Gonaives, 
the  last  port  outward,  on  Juh'  1:2.  On  his  return  voyage 
he  stopped  ;it  the  same  ports,  taking  on  freight,  passen- 
gers and  mail  for  Havre.  At  Cape  Haytien,  on  July  14, 
he  received  a  telegram  from  the  agent  of  his  company  at 


52 

San  Juan,  telling  him  to  hasten  his  arrival  there  by  one 
day  in  order  to  take  on  fifty  first  class  passengers,  and  he 
replied  that  the  ship  would  not  touch  at  San  Juan,  but 
would  be  at  St.  Thomas  on  the  17th.  The  purser  testi- 
fied that  on  the  receipt  of  the  cable  from  the  consignee  at 
San  Juan,  he  told  the  captain  '"that  since  we  were  advised 
of  the  blockade  of  Porto  Rico  by  the  war  ship,  it  was  abso- 
lutely necessary  not  to  stop;"  and  that  ''before  me,  the 
agent  in  Cape  Haytien,  sent  a  cablegram,  saying  'Daim 
[the  vessel]  will  not  stop  at  San  Juan,  the  blockade  being 
notified.'" 

The  ship's  master  further  testified  that  on  the  outward 
voyage  at  each  port  he  had  warned  the  agent  of  the  com- 
pany and  the  postal  department  that  he  would  not  touch 
at  Porto  Rico,  that  he  would  not  take  passengers  for  that 
point,  and  that  the  letters  would  be  returned  to  St.  Thomas, 
and  that  having  received  his  clearance  papers  at  Puerto 
Plata  at  half-past  five  o'clock  on  the  evening  of  July  15, 
he  did  not  leave  until  six  o'clock  in  the  morning  of  July 
16,  as  he  did  not  wTish  to  find  himself  at  night  along  the 
cost  of  Porto  Rico. 

The  ship  was  a  large  and  valuable  one,  belonging  to  a 
great  steamship  company  of  world-wide  reputation;  she 
was  on  her  return  voyage  laden  with  tobacco,  sugar,  coffee 
and  other  products  of  that  region;  she  had  no  cargo,  pas- 
sengers or  mail  for  San  Juan;  she  had  arrived  off  that  port 
in  broad  daylight,  intentionally  according  to  the  captain; 
her  regular  itinerary  on  her  return  to  France  would  have 
taken  her  from  Port  au  Platte  to  San  Juan,  and  from  San 
Juan  to  St.  Thomas,  and  thence  to  Havre,  but  as  San  Juan 
was  blockaded  and  she  had  been  warned  off,  and  could  not 
lawful!}7  stop  there,  her  route  was  from  Port  au  Platte  to 
St.  Thomas,  which  led  her  directly  by  and  not  many  miles 
from  the  port  of  San  Juan. 

The  only  possible  motive  which  could  be  or  is  assigned 
for  her  to  attempt  to  break  the  blockade  is  that  the  con- 
signee at  San  Juan  cabled  the  captain  at  Cape  Haytien  that 
he  must  stop  at  San  Juan  and  take  fifty  first  class  passen- 
gers. At  this  time  the  fleet  of  Admiral  Cervera  had  been 
destroyed;  Santiago  had  fallen;  and  the  long  reign  of 
Spain  in  the  Antilles  was  drawing  to  an  end.  Doubtless  the 
transportation  of  fifty  first  class  passengers  would  prove 
remunerative,  especially  us  some  of  them  might  be  Spanish 
officials,  and  Spanish  archives  and  records,  and  Spanish 
treasure,  might  accompany  them  if  they  escaped  on  the 


53 
ship.      It   is   forcibly  argued   that   these  are   reasonable    Existence    of 

'  .  .  motive    insuf- 

mferences,  and  afforded  a  sufficient  motive  for  the  com-  ficient  without 

11.-  •     evidence  of   in- 

rnission  of  the  offense.  But  as,  where  the  guilty  intent  is  tent. 
established,  the  lack  of  motive  cannot  in  itself  overthrow 
it,  so  the  presence  of  motive  is  not  in  itself  sufficient  to 
supply  the  lack  of  evidence  of  intent.  Now,  in  this  case, 
the  captain  not  only  testified  that  he  answered  the  cable  to 
the  effect  that  he  should  not  stop  at  San  Juan,  but  the 
purser  explicitly  stated  that  the  agent  at  Cape  Haytien 
sent  the  telegram  for  the  captain,  specifically  notifying 
the  agent  at  San  Juan  that  the  ship  would  not  stop  there, 
the  blockade  having  been  notified.  It  is  true  that  the 
cablegram  was  not  produced,  but  this  was  not  to  be 
expected  in  taking  the  depositions  in  preparatories  and 
particularly  as  it  was  not  the  captain's  own  cablegram,  but 
that  of  the  agent  at  Cape  Haytien.  There  is  nothing  in 
the  evidence  to  the  contrary,  and  under  the  liberalit}^  of 
the  rules  of  evidence  in  the  administration  of  the  civil  law, 
we  must  take  this  as  we  find  it,  and,  as  it  stands,  the  argu- 
ment that  a  temptation  was  held  out  is  answered  by  the 
evidence  that  it  was  resisted. 

Such  being  the  situation,  and  the  evidence  of  the  ship's 
officers  being  explicit  that  the  vessel  was  on  her  way  to 
St.  Thomas  and  had  no  intention  of  running  into  San 
Juan,  the  decree  in  her  favor  must  be  affirmed  on  the 
merits,  unless  the  record  elsewhere  furnishes  evidence 
sufficient  to  overcome  the  conclusion  reasonably  deducible 
from  the  facts  above  stated. 

Among  the  papers  delivered  to  the  prize  master  were 
certain  bills  of  health,  five  of  them  by  consuls  of  France, 
namely,  July  9.  from  St.  Marc,  Haiti,  giving  the  ship's 
destination  as  Havre,  with  intermediate  ports;  July  11, 
from  Gonaives,  Haiti,  giving  no  destination;  July  13, 
from  Port  au  Prince,  July  14,  from  Cape  Haytien,  July 
15,  from  Puerto  Plata,  all  naming  Havre  as  the  destina- 
tion; and  three  by  consuls  of  Denmark,  July  13  from  ' 
Port  au  Prince,  July  14  from  Cape  Haytien,  and  July  15 
from  Puerto  Plata,  all  naming  St.  Thomas  as  the  destina- 
tion. When  the  captain  testified  August  2,  in  answer  to 
the  standing  interrogatories,  he  said  nothing  about  any 
Spanish  bills  of  health.  The  deposition  was  reread  to 
captain,  August  3  and  on  the  next  day,  August  4, 
wrote  to  the  prize  commissioners  desiring  to  correct  it, 
saying  'M  fear  I  have  badly  interpreted  several  questions. 
I  was  asked  if  1  had  destroyed  any  papers  on  board  or 


er*; 


54 

passports.  I  replied,  no.  The  papers — documents — on 
board  for  our  voyage  had  been  delivered  up  proper  and 
legal  to  the  prize  master.  This  is  absolutely  the  truth, 
not  including  in  the  documents  two  Spanish  bills  of  health, 
one  from  Port  an  Prince  and  one  from  Cap?  Haytien, 
which  we  found  in  opening  our  papers,  although  they  had 
not  been  demanded.  Not  having  an}-  value  for  us,  I  said 
to  the  steward  to  destroy  them  on  our  arrival  at  Charles- 
ton, as  we  often  do  with  papers  that  are  useless  to  us. 
The  regular  expedition  only  counts  from  the  last  port, 
which  was  Puerto  Plata,  and  I  refused  to  take  it  from  our 
agent  for  Porto  Rico.  I  swear  that  at  ni}'  examination  1 
did  not  think  of  this,  and  it  is  only  on  my  return  from 
signing  that  the  steward  recalled  it  to  me.  I  never  sought 
to  disguise  the  truth,  since  I  wish  to  advise  you.  of  it  as 
soon  as  possible.'" 

theeiurser0n  °f  ^n  tne  ^h.  of  August  the  purser  answered  the  inter- 
rogatories, and  testified  that  papers  were  given  him  b}^  the 
consignees  of  the  steamer  at  Port  au  Prince  in  a  box  at  the 
time  of  sailing,  and  he  found  in  the*  box  one  manifest  of 
freight  in  ballast,  and  it  was  the  same  thing  at  Cape  Ilay- 
tien.  At  Puerto  Plata  the  agent  of  the  company  came  on 
board  on  their  arrival  there,  and  "the  captain  told  him 
that  there  was  no  Spanish  clearance;  there  was  no  need  of 
it,  and  it  was  not  taken."  The  captain  said  to  the  agent 
"it  was  not  necessary,  because  we  are  not  going  to  San 
Juan,  being  notified  of  the  blockade."  "When  we  arrive 
in  a  port  we  put  up  a  placard  of  the  date  of  departure  and 
the  time  of  sailing  and  the  destination,  and  it  was  put  up 
by  my  personal  order  from  the  captain  that  we  sailed  for 
St.  Thomas  directly,  and  it  was  fixed  up  in  the  night  of 
the  15th  of  July.  .  .  .  We  were  to  start  on  the  morn- 
ing of  the  16th,  at  6  o'clock  in  the  morning,  the  captain 
saying  he  did  not  want  to  fall  into  the  hands  of  the  Amer- 
ican cruisers  during  the  night.  The  night  before  our 
arrival  in  Charleston,  the  doctor  says  to  me,  'I  have  a  bill 
of  health,  Spanish  account,  from  Cape  Haytien  and  Port 
au  Prince,'  and  I  told  him  I  would  speak  to  the  captain 
and  ask  him  what  to  do  with  these  papers  that  I  had 
found  in  assorting  my  papers — these  papers  in  the  pigeon 
holes.  I  told  the  captain  that  morning,  and  he  told  me 
that  we  had  better  destroy  them,  because  we  don't  want 
them;  that  it  is  not  our  expedition,  and  that  a  true  expo- 
sition is  valuable  only  for  the  last  port  to  the  Spanish 
port." 


55 
On  the  5th  the  captain  was  permitted  to  testify,  in    Testimony   of 

.  .    *        .  .  the  captain  as  to 

explanation,   saving,  among  other  things:       Ine  reason  missing  papers. 

that  we  did  not  give  up  the  two  bills  of  health  is  because 

the}'  did  not  form  a  part  of  the  clearance  of  our  ship  for 

our  itinerary,   and  they  were  left   in  the    pigeon  holes 

where  they  were.     It  was  at  the  time  of  our  arrival  at 

the  quarantine  at  Charleston  that  the  purser  spoke  to  me 

of  them,  and  I  told  him  that  they  were  good  for  nothing 

and  to  tear  them  up.     The  captain  wishes  to  add  that  he 

did  not  remember  the  instance  the  other  day  about  the 

destruction  of  the  papers,  that  he  has  just  told  us  about, 

and  that  he  never  had  any  intention  to  disguise  anything 

or  to  deceive." 

Counsel  for  the  Government  insist  that  the  intention  of 
the  Olinde  to  run  the  blockade  is  necessarily  to  be  inferred 
from  the  possession  of  these  bills  of  health  and  their 
alleged  concealment  and  destruction.  Doubtless  the  spo- 
liation of  papers,  and.  though  to  a  less  degree,  their  con- 
cealment, is  theoretical!}'  a  serious  offense,  and  authorizes 
the  presumption  of  an  intention  to  suppress  incriminating  , 
evidence  though  this  is  not  an  irrebutable  presumption. 

In  The  Pizarro,  2  Wheat.  227,  2-41,  the  rule  is  thus  stated 
by  Mr.  Justice  Story:  "Concealment,  or  even  spoliation 
of  papers  is  not  of  itself  a  sufficient  ground  for  condemna- 
tion  in  a  prize  court.  It  is,  undoubtedly,  a  very  awaken- ment  of  papers 
ing  circumstance,  calculated  to  excite  the  vigilance,  and 
to  justify  the  suspicions  of  the  court.  But  it  is  a  circum- 
stance open  to  explanation,  for  it  may  have  arisen  from 
accident,  necessity  or  superior  force;  and  if  the  party  in 
the  first  instance  fairly  and  frankly  explains  it  to  the  sat- 
isfaction of  the  court,  it  deprives  him  of  no  Tight  to  which 
'he  is  otherwise  entitled.  If,  on  the  other  hand,  the  spolia- 
tion be  unexplained,  or  the  explanation  appear  weak  and 
futile;  if  the  cause  labor  under  heavy  suspicions,  or  there 
be  a  vehement  presumption  of  bad  faith,  or  gross  prevari- 
cation, it  is  made  the  ground  of  a  denial  of  farther  proof, 
and  condemnation  ensues  from  defects  in  the  evidence 
which  the  party  is  not  permitted  to  supply. " 

It  should  be  remembered  that  the  first  deposition  of  the 
captain  was  given  in  answer  to  standing  interrogatories, 
and  not  under  an  oral  examination;  that  the  statute  (R.  S. 
§4622)  forbade  the  witness  "to  see  the  interrogatories, 
documents,  or  papers,  or  to  consult  counsel,  or  with  an}' 
persons  interested,  without  special  authority  from  the 
court;''  that  he  was  born  and  had  always  lived  in  France. 


56 

and  was  apparent!}'  not  conversant  with  our  language; 
indeed,  he  protested,  as  "neither  understanding  nor  speak- 
ing English,"  "against  all  interpretation  or  translation 
contrary  to  my  thought;"  that  the  deposition  having  been 
reread  to  him  the  day  after  it  was  taken,  he  detected  its 
want  of  fullness,  and  immediately  wrote  the  prize  commis- 
sioners on  the  subject  with  a  view  to  correction;  and  that 
it  was  after  this,  and  not  before,  that  the  purser  testified. 
Transactions  of  this  sort  constitute  in  themselves  no 
con  damnation' ground  for  condemnation,  but  are  evidence,  more  or  less 
the  existence  of  convincing,  of  the  existence  of  such  ground;  yet,  taking 
the  evidence  in  this  case  together,  we  are  not  prepared  to 
hold  that  the  explanation  as  to  how  these  bills  came  to.be 
received  on  board,  neglected  when  the  papers  were  sur- 
rendered, and  finalh'  torn  up,  was  not  sufficient  to  obviate 
any  decisive  inference  of  objectionable  intention. 

The  Government  further  insisted  that  the  Olinde  Rod- 
rigues  refused  to  obey  the  signal  from  the  New  Orleans 
to  heave  to  and  stop  instantly,  and  turned  only  after  she 
had  fired,  and  that  this  conclusively  established  an  inten- 
tion to  A'iolate  the  blockade.  The  theory  of  the  Govern- 
ment is  that  the  French  ship  purposely  held  on  so  as  to 
get  under  the  protection  of  the  batteries  of  San  Juan. 
******* 

It  is  impossible  to  deny  that  the  testimony  of  Captain 
Folger,  the  commander  of  the  New  Orleans,  and  of  his 
officers,  was  extremely  strong  and  persuasive  to  establish 
that  the  Olinde  Rodrigues  when  brought  to,  was  inten- 
tionally heading  for  San  Juan,  and  pursuing  her  course  in 
such  a  manner  as  to  draw  the  blockading  cruiser  in  range 
of  the  enemies'  batteries,  and  yet  we  must  consider  it  in 
view  of  the  evidence  on  behalf  of  the  captured  ship,  and 
of  the  undisputed  facts  tending  to  render  it  improbable 
that  any  design  of  attempting  to  violate  the  blockade  was 
entertained.  The  Olinde  Rodrigues  had  neither  passen- 
gers nor  cargo  for  San  Juan;  in  committing  the  offense, 
she  would  take  the  risk  of  capture  or  of  being  shut  up  in 
that  port;  she  was  a  merchantman  engaged  in  her  regular 
business  and  carrying  the  mails;  she  was  owned  by  a  widely- 
known  and  reputable  company;  her  regular  course,  though 
interrupted  by  the  blockade  of  that  port,  led  directh7  by 
it,  and  not  far  from  it;  and  the  testimony  of  her  captain 
and  officers  denied  amr  intention  to  commit  a  breach. 

The  evidence  of  evil  intent  must  be  clear  and  convinc- 
ing before  a  merchant  ship  belonging  to  citizens  of  a 


57 

friendly  nation  will  be  condemned.  And  on  a  careful 
review  of  the  entire  evidence,  we  think  we  are  not  com- 
pelled to  proceed  to  that  extremity. 

But,  on  the  other  hand,  we  are  bound  to  say  that,  taking- 
all  the  circumstances  together  and  giving  due  weight  to 
the  evidence  on  behalf  of  the  captors,  probable  cause  for 
making  the  capture  undoubtedly  existed;  and  the  case  dis- 
closed does  not  commend  this  vessel  to  the  favorable  con 
sideration  of  the  court. 

Probable  cause  exists  where   there   are   circumstances  f 
sufficient  to  warrant  suspicion  though  it   may  turn  out^nec"s 
that  the  facts  are  not  sufficient  to  warrant  condemnation.  SU8Plclon- 
And  whether  they  are  or  not  cannot  be  determined  unless 
the   customary  proceedings   of   prize  are  instituted  and 
enforced.  .  .   . 

******* 

.  .  .  This  vessel  had  gone  into  San  Juan  on  July  4,  Rt5sumt5- 
although  the  captain  had  heard  of  the  blockade  at  St. 
Thomas,  but  he  says  he  had  not  been  officially  notified  of 
it;  he  telegraphed  to  the  consul  at  San  Juan  to  know,  and 
was  answered  that  the}'  had  received  no  official  notice  from 
Washington  that  the  port  was  blockaded;  he  also  heard 
while  in  San  Juan  that  "it  would  be  blockaded  some  future 
time,  but  that  was  not  official!}7."  The  vessel  was  boarded 
and  warned  lay  the  Yosemite  on  July  5,  and  the  warning 
entered  on  her  log.  This  imposed  upon  her  the  duty  to 
avoid  approaching  San  Juan,  on  her  return,  so  nearly  as 
to  give  just  cause  of  suspicion,  yet  she  so  shaped  her 
course  as  inevitably  to  invite  it. 

When  the  New  Orleans  succeeded  the  Yosemite  her 
commander  was  informed  of  the  facts  by  his  predecessor, 
and  knew  that  whatever  the  right  of  the  Olinde  Rodrigues 
to  be  in  those  waters,  she  could  not  lawfully  place  herself 
so  near  the  interdicted  port  as  to  be  able  to  break  the 
blockade  with  impunity.  But  when  he  sighted  her  the 
ship  was  on  a  course  to  all«appearance  directly  into  that 
port,  and  steadily  pursuing  it.  And  when  he  signaled, 
the  Olinde  Rodrigues  apparently  did  not  obe}T,  but  seem- 
ingly persisted  on  her  course,  and  that  course  would  in  a 
few  moments  have  placed  her  within  the  range  of  the  guns 
of  Morro  and  of  the  shore  batteries.  In  fact,  when  the 
shot  was  fired  she  was  within  the  range  of  the  Morro's 
guns.  The  evidence  is  overwhelming  that  she  did  not 
change  her  course  until  after  the  shot  was  tired,  even 
though  she  may  have  stopped  as  soon  as  she  saw  the  signal. 


exists 


58 

The  turning  point  into  the  Culebra  or  Virgin  Passage 
was  perhaps  forty  miles  to  the  eastward,  and  while  she 
could  have  passed  the  port  of  San  Juan  on  the  course  she 
was  on,  it  would  have  been  within  a  very  short  distance. 
The  disregard  of  her  duty  to  shun  the  port  and  not  ap- 
proach it  was  so  flagrant  that  the  intention  to  break  the 
blockade  was  to  be  presumed  though  we  do  not  hold  that 
that  was  a  presumption  de  jure. 

The  ship's  log  was  not  produced  until  three  hours  after 
she  was  boarded,  and  it  now  appears  that  the  papers  fur- 
nished the  boarding  officer,  "said  to  be  all  the  ship's 
papers,"  did  not  include  two  Spanish  bills  of  health  in 
which  San  Juan  was  entered  as  the  vessel's  destination. 
These  were  destroyed  after  the  ship  reached  Charleston, 
and  were,  therefore,  in  the  ship's  possession  when  the 
other  papers  were  delivered.  Had  they  been  shown,  as 
they  should  have  been,  can  it  be  denied  that  they  would 
have  furnished  strong  corroboration  of  criminal  intent? 
Or  that  their  destruction  tended  to  make  a  case  of  "  strong 
and  vehement  suspicion  ? " 

judgment.  The  entire  record  considered,  we  are  of  the  opinion  that 

restitution  of  the  Olinde  Rodrigues  should  be  awarded, 
without  damages,  and  that  payment  of  the  costs  and 
expenses  incident  to  her  custody  and  preservation,  and  of 
all  costs  in  the  cause  except  the  fees  of  counsel,  should  be 
imposed  upon  the  ship. 

The  decree  of  the  District  Court  will  be  so  modified,  and 

As  modified  affirmed. 

MR.  JUSTICE  McKENNA  dissented  on  the  ground  that 
the  evidence  justified  condemnation. 


CASE  OF  THE  PEDRO. 

[Vol.  175,  United  States  Reports,  p.  354.    Decided  December  11,  1899.    Mr.  CHIEF 
JUSTICK  FULLER  delivered  the  opinion  of  the  court.] 

statement  of  This  was  an  appeal  from  a  decree  of  the  District  Court 
of  the  United  States  for  the  Southern  District  of  Florida 
condemning  the  steamer  Pedro  as  lawful  prize  of  war  on 
a  libel  filed  April  23,  1898. 

April  20,  1898,  the  President  approved  the  following 


April'  2oapi898ved  0"^  resolution: 


"First.  That  the  people  of  the  Island  of  Cuba  are,  and 
of  right  ought  to  be,  free  and  independent 


59 

"Second.  That  it  is  the  duty  of  the  United  States  to 
demand,  and  the  Government  of  the  United  States  does 
hereby  demand,  that  the  Government  of  Spain  at  once 
relinquish  its  authority  and  government  in  the  Island  of 
Cuba  and  withdraw  its  land  and  naval  forces  from  Cuba 
and  Cuban  waters. 

"Third.  That  the  President  of  the  United  States  be, 
and  he  hereby  is,  directed  and  empowered  to  use  the 
entire  land  and  naval  forces  of  the  United  States,  and  to 
call  into  the  active  service  of  the  United  States  the  militia 
of  the  several  States,  to  such  extent  as  may  be  necessary 
to  carry  these  resolutions  into  effect. 

"Fourth.  That  the  United  States  hereby  disclaims  an}- 
disposition  or  intention  to  exercise  sovereignty,  jurisdic- 
tion or  control  over  said  Island  except  for  the  pacification 
thereof,  and  asserts  its  determination,  when  that  is  accom- 
plished, to  leave  the  government  and  control  of  the  Island 
to  its  people."  30  Stat.  738. 

On  the  same  day,  the  Minister  of  Spain  to  the  United 
States  requested  and  obtained  his  passports;  the  text  of  Comm°u Seated 
the  resolution  was  cabled  to  the  Minister  of  the  United10 
States  at  Madrid;  and  the  Secretary  of  State  by  separate 
dispatch  directed  him  to  communicate  the  resolution  to 
the  Government  of  Spain  with  the  formal  demand  of  the 
United  States  therein  made,  and  the  notification  that,. in 
the   absence  of  a  response  by  April  23,  the   President 
would  proceed  without  further  notice  to  use  the  power 
and  authority  enjoined  and  conferred  upon  him. 

April  21,  the  Minister  of  the  United  States  at  Madrid 
acknowledged  the  receipt  of  the  Secretary's  dispatch  that 
morning,  but  saying  that  before  he  had  communicated  it 
he  had  been  notified  b}-  the  Minister  of  Foreign  Affairs  of 
Spain  that  diplomatic  relations  were  broken  off  between  b>' sPain- 
the  two  countries,  and  that  he  had  accordingly  asked  for 
his  passports.  The  letter  from  the  Minister  of  Foreign 
Affairs  of  Spain  referred  to  was  as  follows: 

"In  compliance  with  a  painful  duty  I  have  the  honor 
to  inform  Your  Excellency  that  the  President  having 
approved  a  resolution  of  both  Chambers  of  the  United 
States,  which  in  denying  the  legitimate  sovereignty  of 
Spain  and  threatening  an  immediate  armed  intervention 
in  Cuba,  is  equivalent  to  an  evident  declaration  of  war,  the 
Government  of  His  Majesty  has  ordered  its  Minister  in 
Washington  to  withdraw  without  loss  of  time  from  the 


60 

North  American  territory,  with  all  the  personnel  of  the 
Legation.  By  this  act  the  diplomatic  relations  which  pre- 
viously existed  between  the  two  countries  an-  broken  off, 
all  official  communications  between  their  respective  repre- 
sentatives ceasing,  and  I  hasten  to  communicate  this  to 
Your  Excellency  in  order  that  on  your  part  you  may 
make  such  dispositions  as  seern  suitable.  I  beg  Your 
Excellency  to  acknowledge  the  receipt  of  this  note  at  such 
time  as  }7ou  deem  proper,  and  I  avail  myself  of  this  oppor- 
tunity to  reiterate  to  you  the  assurances  of  my  distin- 
guished consideration." 

nOTth  "coast6  of  ^he  Secretary  of  the  Navy  at  once  gave  instructions  to 
Cuba  ordered,  fae  commander  in  chief  of  the  North  Atlantic  Squadron 
to  "immediately  institute  a  blockade  of  the  North  coast 
of  Cuba,  extending  from  Cardenas  on  the  east  to  Bahia 
Honda  on  the  west;  also,  if  in  your  opinion  your  force 
warrants,  the  port  of  Cienfuegos,  on  the  south  side  of  the 
island.  ...  It  is  believed  that  this  blockade  will  cut  off 
Havana  almost  entirely  from  receiving  supplies  from  the 
outside.  .  .  .  The  Department  does  not  wish  the  defences 
of  Havana  to  be  bombarded  or  attacked  by  your  squadron." 
Blockade  insti-  April  22,  Admiral  Sampson,  in  command,  instituted  the 

tuted    and    pro-  l  .  . 

claimed  April  22.  blockade  and  on  that  day  the  President  issued  the  follow- 
ing proclamation: 

'.'Whereas,  by  a  joint  resolution  passed  by  the  Congress 
and  approved  April  20,  1898,  and  communicated  to  the 
Government  of  Spain,  it  was  demanded  that  said  Govern- 
ment at  once  relinquish  its  authority  and  government  in 
the  Island  of  Cuba,  and  withdraw  its  land  and  naval  forces 
from  Cuba  and  Cuban  waters;  and  the  President  of  the 
United  States  was  directed  and  empowered  to  use  the  entire 
land  and  naval  forces  of  the  United  States,  and  to  call  into 
the  active  service  of  the  United  States  the  militia  of  the 
several  States  to  such  extent  as  might  be  necessary  to  carry 
said  resolution  into  effect;  and 

"Whereas,  in  carrying  into  effect  said  resolution,  the 
President  of  the  United  States  deems  it  necessary  to  set 
on  foot  and  maintain  a  blockade  of  the  North  coast  of  Cuba, 
including  all  ports  on  said  coast  between  Cardenas  and 
Bahia  Honda  and  the  port  of  Cienfuegos  on  the  South  coast 
of  Cuba: 

"Now,  therefore,  I,  William  McKinley,  President  of  the 
United  States,  in  order  to  enforce  the  said  resolution,  do 
hereby  declare  and  proclaim  that  the  United  States  of 
America  have  instituted,  and  will  maintain  a  blockade  of 


61 

the  North  coast  of  Cuba,  including  ports  on  said  coast 
between  Cardenas  and  Bahia  Honda  and  the  port  of  Cien- 
fuegos  on  the  South  coast  of  Cuba,  aforesaid,  in  pursu- 
ance of  the  laws  of  the  United  States  and  the  law  of  nations 
applicable  to  Mich  cases.  An  efficient  force  will  be  posted 
so  as  to  prevent  the  entrance  and  exit  of  vessels  from  the 
ports  aforesaid.  Any  neutral  vessel  approaching  any  of 
said  ports,  Or  attempting  to  leave  the  same,  without  notice 
or  knowledge  of  the  establishment  of  such  blockade,  will 
be  duly  warned  by  the  Commander  of  the  blockading 
forces,  who  will  indorse  on  her  register  the  fact,  and  the 
date,  of  such  warning,  where  such  indorsement  was  made; 
and  if  the  same  vessel  shall  again  attempt  to  enter  any 
blockaded  port,  she  will  be  captured  and  sent  to  the  nearest 
convenient  port  for  such  proceedings  against  her  and  her 
cargo  as  prize,  as  may  be  deemed  advisable. 

; '  Neutral  vessels  lying  in  an}^  of  said  ports  at  the  time 
of  the  establishment  of  such  blockade  will  be  allowed  thirty 
days  to  issue  therefrom."  30  Stat.  1769. 

April  23  the  Queen  Regent  of  Spain  issued  a  decree,  in 
which,  among  other  things,  it  was  stated: 

"Article  1.  The  state  of  war  existing  between  Spain 
and  the  United  States  terminates  the  treaty  of  peace  and 
friendship  of  the  27th  October,  1795,  the  protocol  of  the 
12th  January,  1877,  and  all  other  agreements,  compacts 
and  conventions  that  have  been  in  force  up  to  the  present 
between  the  two  countries. 

"Article  II.  A  term  of  five  days  from  the  date  of  the 
publication  of  the  present  royal  decree  in  the  Madrid 
Gazette  is  allowed  to  all  United  States  ships  anchored  in 
Spanish  ports,  during  which  they  are  at  liberty  to  depart." 

April  25,  in  response  to  a  message  from  the  President, 
Congress  passed  the  following  act,  which  was  thereupon 
duly  and  at  once  approved: 

"First.  That  war  be,  and  the  same  is  hereby,  declared 
to  exist,  and  that  war  has  existed  since  the  twenty-first 
day  of  April.  Anno  Domini  eighteen  hundred  and  riinety- 
eight,  including  said  day,  between  the  United  States  of 
America  and  the  kingdom  of  Spain. 

"Second.  That  the  President  of  the  United  States  be, 
and  he  hereby  is,  directed  and  empowered  to  use  the  entire 
land  and  naval  forces  of  the  United  States,  and  to  call  into 
the  actual  service  of  the  United  States  the  militia  of  the 
several  States,  to  such  extent  as  may  be  necessary  to  carry 
this  act  into  effect."  3<>  Stat,  ;5r>4. 


62 
President's      April  26  the  President  issued  a  further  proclamation, 

proclamation   of 

April   26,    181*,  as  TO  1 1OWS: 

prescribing  rules        ,/-,,r,  -p,  ,.  ^  -,     .         .,    ,,^ 

for  conduct  of  •'  Whereas,  B}T  an  act  of  Congress,  approved  April  2o, 
]  898,  it  is  declared  that  war  exists,  and  that  war  has  existed 
since  the  21st  day  of  April,  A.  D.  1898,  including  said  day, 
between  the  United  States  of  America  and  the  Kingdom 
of  Spain;  and 

"Whereas,  It  being  desirable  that  such  war  should  be 
conducted  upon  principles  in  harmony  with  the  present 
views  of  nations  and  sanctioned  by  their  recent  practice, 
it  has  already  been  announced  that  the  policy  of  this 
Government  will  be  not  to  resort  to  privateering,  but  to 
adhere  to  the  rules  of  the  declaration  of  Paris: 

"Now,  therefore,  1,  William McKinley,  President  of  the 
United  States  of  America,  by  virtue  of  the  power  vested 
in  me  by  the  Constitution  and  the  laws,  do  hereby  declare 
and  proclaim: 

"  1.  The  neutral  flag  covers  the  enemy's  goods,  with  the 
exception  of  contraband  of  war. 

"2.  Neutral  goods,  not  contraband  of  war,  are  not  lia- 
ble to  confiscation  under  the  enemy's  flag. 

"3.  Blockades  in  order  to  be  binding  must  be  eft'ective. 

"4.  Spanish  merchant  vessels,  in  an\r  ports  or  places 
within  the  United  States,  shall  be  allowed  until  May  21, 
1898,  inclusive,  for  loading  their  cargoes  and  departing 
from  such  ports  or  places;  and  such  Spanish  merchant 
vessels,  if  met  at  sea,  by  any  United  States  ship,  shall  be 
permitted  to  continue  their  voyage,  if,  on  examination  of 
their  papers,  it  shall  appear  that  their  cargoes  were  taken 
on  board  before  the  expiration  of  the  above  term;  Pro- 
vided, that  nothing  herein  contained  shall  apply  to  Span- 
ish vessels  having  on  board  any  officer  in  the  military  or 
naval  service  of  the  enemy,  or  any  coal  (except  such  as 
may  be  necessary  for  the  vo3Tage),  or  any  other  article 
prohibited  or  contraband  of  war,  or  any  dispatch  of  or  to 
the  Spanish  Government. 

"5.  Any  Spanish  merchant  vessel  which,  prior  to  April 
21, 1898,  shall  have  sailed  from  any  foreign  port  bound  for 
any  port  or  place  in  the  United  States,  shall  be  permitted 
to  enter  such  port  or  place,  and  to  discharge  her  cargo, 
and  afterwards  forthwith  to  depart  without  molestation; 
and  any  such  vessel,  if  met  at  sea  by  any  United  States 
ship,  shall  be  permitted  to  continue  her  voyage  to  any 
port  not  blockaded. 


63 

"6.  The  right  of  search  is  to  be  exercised  with  strict 
regard  for  the  rights  of  neutrals,  and  the  voyages  of  mail 
steamers  are  not  to  be  interfered  with  except  on  the  clear- 
est grounds  of  suspicion  of  a  violation  of  law  in  respect  of 
contraband  or  blockade."  30  Stat.  1770. 

The  steamship  Pedro  was  built  at  Newcastle,  England, .  statement    of 

'the   case   con- 

in  1883,  and,  until  1887,  sailed  under  British  registry  and 
the  name  of  Lilburn  Tower.  Pn  the  latter  }rear  her  name 
was  changed  to  The  Pedro,  and  she  was  transferred  to  La 
Compania  La  Flecha,  a  Spanish  corporation  of  Bilboa, 
Spain,  and  registered  at  that  port  in  its  name,  and  on 
October  4,  1887,  obtained  a  royal  patent  from  the  Crown 
of  Spain,  which  was  issued  to  her  as  the  property  of  the 
company.  Thereafter  she  sailed  under  the  Spanish  flag 
and  was  officered  and  manned  by  Spaniards,  though  she 
was  engaged  in  the  transportation  of  cargo  for  hire  as  a 
merchant  vessel  under  the  management  of  G.  H.  Fletcher 
and  Company  of  Liverpool.  Her  voyages  began  in  Europe 
where  she  took  cargo  for  Cuban  ports,  from  which  ports 
on  discharge  she  proceeded  to  ports  of  the  United  Statesy 
where  she  took  cargo  for  a  port  of  discharge  in  Europe, 
the  round  trip  occup3"ing  about  three  months.  Between 
March  20  and  March  25,  1898,  she  took  on  board  at  Ant- 
werp, Belgium,  some  2000  tons  of  cargo  for  Havana, 
Santiago  de  Cuba,  and  Cienfuegos,  Cuba,  of  which  1700 
tons  was  rice  and  the  rest,  hardware,  empty  bottles,, 
paper,  cement  and  general  cargo. 

On  March  18,  1898,  she  was  chartered  to  the  firm  of 
Keyser  and  Compan3T,  being  described  in  the  charter  party 
as  "  now  loading  in  Antwerp  for  Cuba,"  to  proceed  to 
Pensacola,  Florida,  or  Ship  Island,  Mississippi,  "with  all 
convenient  speed,"  to  load  a  cargo  of  lumber  for  Rotter- 
dam or  Antwerp.  The  charter  party  provided  that 
"should  the  vessel  not  be  in  all  respects  ready  for  cargo 
at  her  loading  place  on  or  before  the  18th  of  May,  1898, 
charterers  or  their  agents  have  the  option  of  cancelling 
this  charter.  If  required  by  charterers,  lay  days  are  not 
to  commence  at  loading  port  before  the  5th  of  Ma}',  1898.'T 
Among  the  ship's  papers  was  a  bill  of  health  issued  by  the 
consul  of  the  United  States  at  Antwerp,  March  24,  which 
described  her  as  "engaged  in  Atlantic  trade,  and  plies  be- 
tween Antwerp,  Cuba  and  the  United  States."  The  bill 
of  health  concluded  as  follows:  "I  certify  that  the  vessel 
has  complied  with  the  rules  and  regulations  made  under 


64 

°fthe  act  °*  February  15,  1893,  and  that  the  vessel  leaves 
this  port  bound  for  Pensacola,  in  the  United  States  of 
America,  via  Havana,  Santiago  &  Cienfuegos."  The 
steamer's  freight  list  on  the  vo}rage  to  Cuban  ports  was 
valued  at  about  $7000,  stated  to  be  barely  sufficient  to 
cover  the  expenses  of  receiving,  transporting  and  deliver- 
ing that  cargo,  and  the  charter  hire  on  the  contemplated 
voyage  from  Pensacola  or  Ship  Island  to  Rotterdam  would 
have  been  about  $25,000. 

The  steamer  arrived  at  Havana  on  April  IT,  and  re- 
mained there  for  five  days,  discharging  about  sixteen  hun- 
dred tons  of  her  cargo,  and  taking  on  some  twenty  tons  of 
general  merchandise  for  Santiago.  On  April  22,  at  about 
half  after  three  o'clock  in  the  afternoon,  she  left  Havana 
for  Santiago,  and  at  six  o'clock,  when  about  fifteen  miles 
east  of  the  Morro,  at  the  entrance  of  Havana  harbor,  and 
five  miles  north  of  the  Cuban  coast,  was  captured  by  the 
•cruiser  New  York,  one  of  the  blockading  fleet,  and  sent  to 
Key  West  in  charge  of  a  prize  crew.  There  she  was 
libelled  on  April  23. 

In  due  course,  proofs  in  pi*eparatorio,  which  embraced 
the  ship's  papers  and  the  depositions  of  her  master  and 
first  officer,  were  taken.  The  master  appeared  in  behalf 
of  the  owners  and  made  claim  to  the  vessel,  and  moved 
the  court  for  leave  to  take  further  proofs,  presenting  with 
the  motion  his  test  affidavit.  In  the  affidavit  it  was  alleged 
that,  although  a  majority  of  the  stock  of  La  Compania 
La  Flecha  was  registered  in  the  names  of  Spanish  subjects 
and  onljr  a  minorit}7  in  the  names  of  British  subjects,  (mem- 
bers of  the  firm  of  G.  H.  Fletcher  &  Company,)  one  of 
the  latter  had  possession  of  all  the  certificates  of  stock, 
which  under  the  charter  of  the  company  established  the 
•ownership  thereof,  whereby  he  was  the  "  sole  beneficial 
owner  of  the  said  steamer  Pedro."  And  further  that  the 
steamer  was  transferred  from  the  British  to  the  Spanish 
registry  solely  for  commercial  reasons,  "  there  being  dis- 
criminations in  favor  of  vessels  carrying  the  Spanish  flag 
in  respect  of  commerce  with  the  colonies  of  Spain,  in  con- 
sideration of  dues  paid  by  such  steamers  to  the  govern- 
ment of  Spain,"  but  that  it  was  the  intention  of  the  British 
stockholders  to  withdraw  her  from  the  Spanish  registry 
and  from  under  the  Spanish  flag,  and  restore  her  to  the 
British  registry  and  the  flag  of  Great  Britain  whenever 
the  trade  might  be  disturbed.  It  was' also  alleged  that  the 
steamer  w:is  insured '•  against  all  perils  and  adventures, 


65 

including-  the  risks  of  war,  for  her  full  value  by  under-  $£%$%?***  of 
writers  of  Lloyds,  London,  and  by  insurance  companies 
organized  and  existing  under  and  pursuant  to  the  laws  of 
Great  Britain,  and  that  if  the  said  vessel  should  be  con- 
demned as  prize  b}'  this  court  the  loss  will  rest  upon  and 
be  borne  by  the  said  English  underwriters." 

The  motion  was  denied,  the  cause  heard  on  the  plead- 
ings and  the  proofs  taken  in  preparatorio,  and  a  decree  of 
condemnation  entered.  .  .  .  From  the  decree  of  condem- 
nation an  appeal  was  prosecuted  to  this  court. 

MR.  CHIEF  JUSTICE  FULLER  delivered  the  opinion  of 
the  court. 

When,  on  the  twent}~-second  day  of  April,  this  Spanish  Opinion, 
steamer  sailed  from  Havana,  the  United  States  and  Spain 
were  at  war.  Congress  had  adopted  a  resolution,  April 
20,  demanding  "that  the  Government  of  Spain  at  once 
relinquish  its  authority  and  government  in  the  island  of 
Cuba  and  withdraw  its  land  and  naval  forces  from  Cuba 
and  Cuban  waters,"  and  directing  and  empowering  the 
President  "to  use  the  entire  land  and  naval  forces  of  the 
United  States,  and  to  call  into  the  actual  service  of  the 
I'nited  States  the  militia  of  the  several  States,  to  such 
extent  as  may  be  necessary  to  cany  these  resolutions  into 
effect."  Time  was  given  by  the  Executive  until  April  23 
for  Spain  to  signify  compliance  with  the  demand,  but  the 
Spanish  Government  at  once,  on  April  21,  recognized  the  ^t^oui^V*!8* 
resolution  as  "an  evident  declaration  of  war,"  and  dip-™ation,  anf  be- 

1     fore     hostilities 

lomatic  relations  were  broken  off.  Blockade  had  beenbe&in- 
proclaimed  April  22,  and  put  into  effective  operation  at 
Havana,  and,  immediately  thereupon,  elsewhere,  under 
the  proclamation.  And  by  the  act  of  Congress  of  April 
25,  it  was  declared  that  war  had  existed  since  the  twenty- 
first  day  of  April. 

Being  an  enemy's  vessel,  the  Pedro  was  liable  to  cap- 
ture as  lawful  prize  unless  exempted  therefrom  by  the 
terms  of  the  proclamation  of  April  26.  If  that  document 
in  its  bearing  on  this  case  could  be  regarded  as  ambigu- 
ous, a  liberal  construction  might  be  indulged  in,  and  it  is 
urged  that  such  liberality  should  in  any  event  be  accorded 
in  view  of  the  traditional  polky  of  this  Government  in 
respect  of  the  exemption  of  private  property  at  sea  during 


In  The  7Vm ///./•,  1  Spinks  Ecc-1.  &  Adm.  Kep.  306,  310;    nePhomix. 
Spinks'  Prize  Cases.  1.  6.  Dr.  Lushington  said  in  refer- 
2056—04 5 


66 

ence  to  the  relaxation  of  belligerent  rights  by  official 
action:  "If  the  words  of  the  document  are  capable  of 
two  constructions,  then  I  am  clearly  of  opinion  that  the 
one  mosUfavorable  to  the  belligerent  party,  in  whose  favor 
the  document  is  issued,  ought  to  be  adopted;  but  the  court 
must  bear  in  mind  that  its  province  is  not  jus  dare,  but  ju^ 
dicere;  and  I  must  again  refer  to  the  principle  which  I 
have  often  enunciated  in  this  court,  verbis  plane  expressis 
omnino  standum  est" 

As  applicable  here,  the  meaning  of  the  language  used 
unjustf  aPPears  to  us  plain,  and  the  proclamation  not  open  to 

dfpiomaTkS°a\tf  inten?retation,  since  none  is  needed;  nor  are  we  justified 
in  expanding  executive  action  by  construction  because  of 
diplomatic  attitude  of  this  Government  in  respect  of  the 
exemption  of  all  property,  not  contraband,  of  citizens  and 
subjects  of  nations  at  war  with  each  other,  an  exemption 
which  has  not  as  yet  been  adopted  into  the  law  of  nations. 

iaw°asritis.pply  It  may  be 'that  the  hardships  incident  to  •  the  contrary 
view  will  finally  be  found  so  destitute  of  corresponding 
advantage  as  to  lead  to  the  general  acceptance  of  the  doc- 
trine so  long  unsuccessfully  advocated  by  our  statesmen 
and  publicists,  in  diminution  of  the  evils  of  war,  but  wo 
must  apply  the  law  as  it  is,  and  not  the  law  as  they  con- 
tended it  should  be. 

The  Pedro  did  not  come  within  the  fourth  article  of  the 
proclamation,  for  she  was  in  Havana,  a  port  of  the  enemy,  on 
April  21,  and  not  "in  any  port  or  place  within  the  United 
States."  She  sailed  from  Havana  for  Santiago,  another 
port  of  the  enemy,  on  April  22,  was  captured  that  day, 
and  reached  Key  West  on  April  23  as  a  prize  of  war. 
The  suggestion  that  she  was  thus  brought  within  the  ex- 
emption requires  no  remark. 

Nor  did  the  fifth  article  of  the  proclamation  exempt  the 
Pedro.  That  article  provided  that  "any  Spanish  mer- 
chant vessel  which,  prior  to  April  21,  1898,  shall  have 
sailed  from  any  Spanish  port  bound  for  any  port  or  place 
in  the  United  States,  shall  be  permitted  to  enter  such  port 
or  place  and  to  discharge  her  cargo,  and  afterward  forth- 
with to  depart  without  molestation." 
imminence  of  The  Pedro  remained  in  the  harbor  of  Havana  from  the 

forePedroVsaiiect  17th  until  the  22d  of  April.  We  think  it  must  be  assumed 
that  she  was  advised  of  the  strained  relations  between  the 
United  States  and  Spain,  and  the  imminence  of  hostilities. 
At  all  events,  she  did  not  leave  Havana  until  the  day  after 


67 


that  designated  by  Congress  and  the  President  as  the  day 
on  which  war  actually  began,  and  which  was  also  so  regarded 
by  the  Government  of  Spain.  She  had  no  cargo  to  be  dis- 
charged at  any  port  or  place  in  the  United  States,  but  had 
cargo  for  Santiago  and  Cienf  uegos,  Cuban  ports  held  by 
the  Spanish  forces,  and  she  cleared,  not  for  Pensacola,  but 
for  Santiago.  She  was  not  within  the  letter  of  the  proc- 
lamation, nor  within  the  reasons  usually  assigned  for  the 
exemption  as  pointed  out  in  the  opinion  of  the  District 
Judge,  87  Fed.  Rep.  927.  She  had  not  left  a  foreign  port 
in  ignorance  of  the  perilous  condition  of  affairs,  and  inno- 
cently taking  a  course  which  would  subject  her  to  our 
power  by  entering  one  of  our  ports.  Neither  was  she 
bringing  cargo  to  this  country  for  the  increase  of  our 
resources,  or  the  convenience  of  our  citizens. 
trary,  she  was  sailing  from  one  port  to  another  port  of  the 
enemy,  and  all  the  cargo  she  had  on  board  was  destined 
for  the  enemy's  ports.  Not  only  this,  but  she  took  on  cargo 
at  Havana  for  Santiago,  and  was  captured  while  thus 
actually  trading  from  one  enemy  port  to  another  enemy 
port,  being  herself  an  enemy  vessel.  In  these  circum- 
stances the  fact  that  the  Pedro  was  under  contract  to  ulti- 
mately proceed,  after  concluding  her  visits  to  the  Spanish 
ports,  to  a  port  of  the  United  States,  to  there1  load  for 
Europe,  did  not  bring  her  within  the  exemption  of  the 
proclamation. 

The  doctrine  as  to  continuity  of  voyage  as  laid  down  by 
this  court  in  the  cases  cited  by  appellant  has  no  application. 

In  The  Circassian,  2  Wall.  135,  it  was  ruled  that  the 
intent  to  violate  a  blockade,  found  as  a  fact,  was  not  dis- 
proved by  evidence  of  a  purpose  to  call  at  a  neutral  port, 
not  reached  at  time  of  capture,  with  ulterior  destination 
to  the  blockaded  port.  In  The  Bermuda,  3  Wall.  514, 
the  actual  destination  to  a  belligerent  port,  whether  ulte- 
rior or  direct,  was  held  to  determine  the  character  of 
the  transaction  as  a  whole;  that  transhipment  could  not 
change  the  effect  of  the  pursuit  of  a  common  object  by  a 
common  plan;  and  that  if  the  cargo  was  contraband  its 
condemnation  was  justified,  whether  the  voyage  was  to 
ports  blockaded  or  to  ports  not  blockaded;  and  so  as  to 
the  vessel  in  the  former  case.  And  in  77//- 
Wall.  1.  it  was  held  that  an  intention  to  tranship  cargo  at 
a  neutral  port  did  not  save  it  when  destined  for  a  block- 
aded port;  that  as  to  cargo,  both  in  law  and  intent,  the 


On  thp  prm       Pedro  an  ene- 
J"  my  ship,  trading 


The  Circassian. 


The  Bermuda. 


•">    TI*  springbok. 


68 

Voyage  from  London  to  the  blockaded  port  was  one  voy- 
age, and  that  the  liability  attached  from  the  time  of  sail- 
ing if  captured  during  any  part  of  that  voyage.  The  solu- 
tion of  the  question  under  consideration  is  not  particularly 
aided  by  these  and  like  decisions  relating  to  blockade  run- 
ning and  the  transportation  of  contraband. 

The  Joseph.  jn  T}ie  Joseph,  8  Oanch,  451,  the  American  brig  Joseph 
sailed  from  Boston  with  a  cargo  of  freight  April  6,  1812, 
on  a  voyage  to  Liverpool,  and  the  north  of  Europe,  and 
thence  directly  or  indirectly  to  the  United  States.  She 
discharged  her  cargo  at  Liverpool;  then,  under  British 
license,  she  took  a  cargo  from  Hull  to  St.  Petersburg, 
and  there  received  news  of  the  war  between  the  United 
States  and  Great  Britain.  She  afterwards  sailed  from 
St.  Petersburg  to  London  with  a  cargo  consigned  to 
merchants  at  that  port,  having  delivered  which,  she  sailed 
for  the  United  States  in  ballast,  and  was  captured  not 
far  from  Boston  Light,  and  sent  into  port  for  adjudica- 
tion. Her  trading  with  the  enemy  rendered  her  liable 
to  condemnation  as  prize;  but  it  was  contended  that  the 
offensive  voyage  terminated  at  London,  and  that  she 
was  not  taken  in  delicto.  The  court  held,  however,  that 
whether  her  voyage  were  considered  an  entire  one  from 
the  United  States  to  England,  thence  to  St.  Petersburg, 
and  thence  to  the  United  States,  or  as  two  distinct  voyages, 
the  homeward  voyage  being  from  St.  Petersburg  to  the 
United  States,  with  a  deviation  to  London,  she  was  cap- 
tured during  the  same  voyage  in  which  the  offence  was 
committed,  though  after  it  was  committed,  and  was  still 
in  delicto. 

.  ffie  Argo,  1  Spinks,  375;  Spinks'  Prize  Cases,  52,  so 

much  relied  on  by  counsel,  was  an  entirely  different  case 
from  that  presented  by  this  record.  The  Argo  was  a  ves- 
sel belonging  to  a  Russian  owner,  sailing  under  Russian 
colors,  and  bound  on  a  voyage  from  Havana  to  Cork. 
Her  charter  party  bore  date  February  7  at  Havana,  but 
it  was  therein  stipulated  that  she  should  load  at  Havana  or 
Matanzas,  demurrage  not  to  be  paid  for  f orty-two  running 
days.  She  took  on  sufficient  ballast  at  Havana  to  keep 
her  safe,  and  left  there  in  February  for  Matanzas,  where 
her  cargo  was  begun  to  be  put  on  'board  February  28  and 
was  completed  on  March  30,  and  she  cleared  from  that 
port  April  2.  March  29,  1854,  the  British  Order  in  Coun- 


69 

cil  printed  in  the  margin1  was  issued.  Dr.  Lushington, 
adhering  to  the  views  he  had  expressed  in  The  Pliwnix, 
XKJ  >i'a,  held  that  the  order  did  not  contemplate  that  the 
vessel  should  be  laden  at  the  date  of  sailing  and  that  the 
voyage  was  commenced  at  Havana  to  end  in  Great  Britain, 
notwithstanding  she  took  cargo  at  Matanzas. 

It  was  argued  that  the  Pedro  was  not  liable  to  capture  sh^eu^al  °^! 
and  condemnation  because  British  subjects  were  the  legal  wlfhlbitCnorex8 
owners  of  some  and  the  equitable  owners  of  the  rest  of  the  ^^re1    f  rom 
stock  of  La  Compania  La  Flecha,  and  because  the  vessel 
was  insured  against  risks  of  war  by  British  underwriters. 
But  the  Pedro  was  owned  by  a  corporation  incorporated 
under  the  laws  of  Spain;  had  a  Spanish  registry;  wassail- 
ing under  a  Spanish  flag  and  a  Spanish  license;  and  was 
officered  and  manned    by  Spaniards.     Nothing  is  better 
settled  than  that  she  must,  under  such  circumstances,  be 
deemed  to  be  a  Spanish  ship  and  to  be  dealt  with  accord- 
ingly.     Story  on  Prize  Courts  (Pratt's  Ed.)  60,  66,  and 
cases  cited.     The  Friendschaft,  4  Wheat.  105 ;  The  Ariadne, 
2  Wheat.  143;  The  Cheshire,  3  Wall.  231;  Hall  Int.  Law, 
§169. 

These  stockholders  were  in  no  position  to  deny  that 
when  they  elected  to  take  the  benefit  of  Spanish  naviga- 

1  "Her  Majesty,  being  compelled  to  declare  war  against  His  Impe-  in'counciHn'cri- 
rial  Majesty  the  Emperor  of  all  the  Russias,  and  being  desirous  to  rcean  War, 
lessen  as  much  as  possible  the  evils  thereof  is  pleased  by  and  with  the 
advice  of  her  Privy  Council,  to  order,  and  it  is  hereby  ordered,  that 
Russian  merchant  vessels,  in  any  ports  or  places  within  her  Majesty's 
dominions  shall  be  allowed  until  the  tenth  day  of  May  next,  six  weeks 
from  the  date  hereof,  for  loading  their  cargoes  and  departing  from 
such  ports  or  places;  and  that  such  Russian  merchant  vessels,  if  met 
at  sea  by  any  of  her  Majesty's  ships,  shall  be  permitted  to  continue 
their  voyage,  if  on  examination  of  their  papers  it  shall  appear  that 
their  cargoes  were  taken  on  before  the  expiration  of  the  above  term: 
Provided,  that  nothing  herein  contained  shall  extend  to  or  be  taken  to 
extend  to  Russian  vessels  having  on  board  any  officer  in  the  military 
or  naval  service  of  the  enemy,  or  any  article  prohibited  or  contraband 
of  war,  or  any  despatch  of  or  to  the  Russian  Government. 

"And  it  is  hereby  further  ordered  by  her  Majesty,  by  and  with  the 
advice  of  her  Privy  Council  as  aforesaid,  that  any  Russian  merchant 
vessel  which,  prior  to  the  date  of  this  order,  shall  have  sailed  from 
any  foreign  port  bound  for  any  port  or  place  in  her  Majesty's  domin- 
ions, shall  be  permitted  to  enter  such  port  or  place,  and  to  discharge 
her  cargo,  and  afterwards  forthwith  to  depart  without  molestation; 
and  that  any  such  vessel,  if  met  at  sea  by  any  of  her  Majesty's  ships 
shall  be  permitted  to  continue  her  voyage  to  any  port  not  blockaded 


Conclusion. 


70 

tion  laws  and  the  commercial  profits  to  be  derived  through 
discriminations  thereunder  against  ships  of  other  nations, 
they  also  elected  to  rely  on  the  protection  furnished  by 
the  Spanish  flag.  Nor  can  the  alleged  intention  to  restore 
the  Pedro  to  British  registry,  if  war  rendered  the  change 
desirable,  be  regarded.  That  had  not  been  done  when  the 
Pedro  was  captured. 

In  conclusion,  we  are  of  opinion  that  the  court  below 
did  not  err  in  refusing  to  allow  further  proofs  to  be  taken. 
The  Spanish  ownership  was  made  out,  and  the  facts  that 
the  stock  of  the  corporation  belonged  legally  or  equitably 
to  British  subjects  or  that  the  loss  of  the  vessel  would  be 
eventually  borne  \>y  British  underwriters  were  immaterial. 
Nor  was  there  any  doubt  as  to  the  movements  of  the  Pedro 
and  the  trading  in  which  she  was  actually  engaged.  The 
conclusion  reached  by  the  District  Court  could  not  have 
been  affected  by  the  further  proofs  desired  to  be  taken. 

Decree  affirmed. 

MR.  JUSTICE  WHITE,  with  whom  concurred  MR.  JUSTICE 
BREWER,  MR.  JUSTICE  SHIRAS  and  MR.  JUSTICE  PECKHAM, 
dissenting. 


CASE  OF  THE  BUENA  VENTURA. 

(Vol.  175,  United  States  Reports,  p.  384.    Decided  Dec.  11, 1899.    MR.  JUSTICE  PECK- 
HAM  delivered  the  opinion  of  the  court.) 

statement  of  During  the  late  war  between  the  United  States  and 
Spain,  and  on  May  27,  1898,  the  District  Court  of  the 
United  States  for  the  Southern  District  of  Florida  con- 
demned the  steamship  Buena  Ventura  as  lawful  prize  of 
war,  on  the  ground  "that  the  said  steamship  Buena  Ven- 
tura was  enenry's  propert}7,  and  was  upon  the  high  seas 
and  not  in  any  port  or  place  of  the  United  States  upon  the 
outbreak  of  the  war,  and  was  liable  to  condemnation  and 
seizure."  It  was  thereupon  ordered  that  the  vessel  "be 
condemned  and  forfeited  to  the  United  States  as  lawful 
prize  of  war;  but  it  appearing  that  the  cargo  of  the  said 
steamer  was  the  propert}'  of  neutrals  and  not  contraband 
and  subject  to  condemnation  and  forfeiture,  it  is  ordered 
that  said  cargo  be  released  and  restored  to  the  claimant 
or  the  true  and  lawful  owners  thereof." 

The  vessel  was  captured  on  April  22,  1898,  eight  or 
nine  miles  from  Sand  Key  light,  on  the  Florida  coast,  by 


71 

the  United  States  ship  of  war  Nashville,  under  the  com-  thl*^1116111  of 
mand  of  a  line  officer  of  the  United  States  Navy,  was 
brought  into  the  port  of  Key  West  for  adjudication,  and 
was  condemned  upon  the  answers,  given  by  the  master 
and  mate  of  the  steamship,  to  standing  interrogatories  in 
preparatorio,  and  upon  the  documents  seized  on  board  the 
ship  by  the  captors.  This  evidence  showed  that  the  steam- 
ship was  a  Spanish  vessel  engaged  exclusively  in  the  car- 
rying of  cargoes,  and  that  at  the  time  of  her  capture  she 
was  making  a  voyage  under  a  charter  party  which  had 
been  concluded  in  Liverpool  on  March  23,  1898,  between 
the  agents  of  the  owners  and  the  agents  of  the  charterers. 
By  this  charter  party  the  steamship  was  described  as  "  now 
ready  to  leave  Cuba;"  and  it  was  agreed  upon  therein  that 
the  vessel  should  with  all  convenient  speed  proceed  to 
Ship  Island,  Mississippi,  and  there  take  on  a  cargo  of 
lumber,  and  proceed  therewith,  as  customary,  to  Rotter- 
dam. The  vessel  was  to  be  at  her  loading  place  and  ready 
for  cargo  on  or  before  the  10th  of  April,  and  if  she  were 
not,  the  charterers  had  the  option  of  cancelling  the  charter. 
Pursuant  to  this  charter  part}r  the  ship  left  Cuba  and  ar- 
rived at  Ship  Island  about  the  31st  of  March,  and  between 
that  time  and  the  19th  of  April  she  had  taken  on  her  cargo, 
and  on  the  latter  day  had  sailed  from  Ship  Island  bound 
for  Norfolk,  Virginia,  to  take  in  bunker  coal,  the  charter 
party  giving  the  vessel  the  liberty  to  stop  at  any  port  on 
the  voyage  for  coal,  then  to  proceed  to  Rotterdam.  After 
leaving  port  at  Ship  Island  she  proceeded  on  her  voyage 
to  Norfolk,  and  about  half -past  seven  o'clock  on  the  morn- 
ing of  April  22,  while  proceeding  close  to  the  Florida 
reefs,  was  captured  as  stated.  She  made  no  resistance  at 
the  time  of  her  capture,  there  were  no  military  or  naval 
officers  on  board  of  her,  and  she  carried  no  arms  or  muni- 
tions of  war.  The  evidence  is  undisputed  that  the  vessel, 
when  captured,  was  proceeding  on  her  voyage  to  Norfolk. 
Previous  to  sailing  from  Ship  Island  she  was  furnished 
with  a  bill  of  health,  in  which  it  was  stated  that  she  was 
now  "ready  to  depart  from  the  port  of  Pascagoula,  Mis- 
sissippi, [which  is  the  customs  port  of  Ship  Island,]  for 
Norfolk.  Virginia,  and  other  places  beyond  the  sea."  Her 
manifest  showed  that  she  was  bound  for  Norfolk.  It  is 
headed  "Coast  Manifest,"  and  after  a  description  of  the 
cargo  it  continues:  "Permission  is  hereby  granted  to  said 
vessel  to  proceed  from  this  port  to  Norfolk,  in  the  district 
of  Norfolk  and  State  of  Virginia,  to  lade  bunker  coal;" 


72 

o£and  &  was  signed  and  sealed  by  the  deputy  collector  of 
Pascagoula,  district  of  Pearl  River,  Mississippi,  on  April 
14, 1898,  and  the  fees  therefor  paid. 

The  ship's  clearance  was  for  Norfolk,  and  contained  the 
same  permission  to  proceed  there,  to  lade  bunker  coal. 

There  was  no  evidence  which  tended  to  throw  any  sus- 
picion as  to  the  destination  of  the  vessel. 

After  obtaining  all  her  papers  in  the  regular  way,  and 
having  cleared  at  the  custom  house  on  April  14,  1898,  she 
was  detained  at  Ship  Island  by  low  water  until  between 
eight  and  nine  o'clock  A.  M.  of  April  19,  1898,  when  she 
sailed  over  the  bar  and  proceeded  on  her  voyage. 

In  the  test  affidavit  of  the  master  he  swore  that  at  all 
times  before  the  ship's  seizure  he  and  all  of  his  officers 
were  ignorant  that  war  existed  between  Spain  and  the 
United  States,  and  the  vessel  at  the  time  of  her  capture 
was  following  the  ordinary  course  of  her  voyage. 

The  various  proceedings  of  Congress,  proclamations  of 
the  President,  letters  of  the  Secretary  of  State,  and  other 
public  documents  connected  with  occurrences  leading  up 
to  the  breaking  out  of  hostilities  between  this  country  and 
Spain  are  contained  in  this  record,  but  are  also  set  forth 
at  sufficient  length  in  the  statement  of  facts  contained  in 
the  report  of  the  case  of  The  Pedro,  ante  355  [see  p.  58, 
preceding],  and  it  is  unnecessary,  therefore,  to  repeat  them. 

After  a  hearing  the  District  Court  on  the  27th  of  May, 
1898,  condemned  the  vessel,  87  Fed.  Rep.  927,  which  was 
sold  under  the  final  decree  of  the  court,  and  her  proceeds 
deposited  to  abide  the  event  of  an  appeal,  which  was  then 
taken  on  the  part  of  the  claimant. 

MR.  JUSTICE  PECKHAM,  after  stating  the  facts  as  above, 
delivered  the  opinion  of  the  court. 

The  Buena  Ventura  was  a  Spanish  merchant  vessel  in 
the  peaceful  prosecution  of  her  voyage  to  Norfolk,  Vir- 
ginia, from  Ship  Island,  in  the  State  of  Mississippi,  when, 
on  the  morning  of  April  22,  1898,  she  was  captured  as 
lawful  prize  of  war,  of  the  existence  of  which,  up  to  the 
moment  of  capture,  all  her  officers  were  ignorant.  She 
was  not  violating  any  blockade,  carried  neither  contra- 
band of  war  nor  any  officer  in  the  military  or  naval  serv- 
ice of  the  enemy,  nor  any  dispatch  of  or  to  the  Spanish 
Government,  and  attempted  no  resistance  when  captured. 

Historic     atti-  ,.         L.  .  i       i  i  •- 1  •        ,1 

tude   of   the     The  facts  regarding  this  vessel  place  her  within  that 

United  States  in  .  . &  f  . 

favor  of  mitigat- class  which  this  Government  has  alwavs  desired  to  treat 

ing   the  horrors  .  " .  .  .  .  .      . 

of  war  as  to  aii  with   great   liberality.     It   is,   as   we   think,   historically 

non-combatants.  » 


73 

accurate  to  say  that  this  Government  has  always  been,  in 
its  views,  among  the  most  advanced  of  the  Governments 
of  the  world  in  favor  of  mitigating,  as  to  all  non-combat- 
ants, the  hardships  and  horrors  of  war.  To  accomplish 
that  object  it  has  always  advocated  those  rules  which  would 
in  most  cases  do  away  with  the  right  to  capture  the  prop- 
erty of  an  enemy  on  the  high  seas.  3  Wharton's  Interna- 
tional Law  Digest,  §  342.  The  refusal  of  this  Government 
to  agree  to  the  Declaration  of  Paris  was  founded  in  part 
upon  the  refusal  of  the  other  Governments  to  agree  to  the 
proposition  exempting  private  property,  not  contraband, 
from  capture  upon  the  sea. 

It  being  plain  that  merchant  vessels  of  the  enemy  car- 
rying on  innocent  commercial  enterprises  at  the  time  or 
just  prior  to  the  time  when  hostilities  between  the  two 
countries  broke  out,  would,  in  accordance  with  the  later 
practice  of  civilized  nations,  be  the  subject  of  liberal 
treatment  by  the  Executive,  it  is  necessary  when  hisproc 
lamation  has  been  issued,  which  lays  down  rules  for  treat- 
ment of  merchant  vessels,  to  put  upon  the  words  used 
therein  the  most  liberal  and  extensive  interpretation  of  Liberal  imer- 

,  .    ,     ,  1  .  i  ,       ,  , ,  pretation  of  Ex- 

which  they  are  capable;  and  where  there  are  two  or  moreecutive    procia- 
interpretations  which  possibly  might  be  put  upon  the  Ian- n 
guage,  the  one  that  will  be  most  favorable  to  the  belligerent 
party,  in  whose  favor  the  proclamation  is  issued,  ought 
to  be  adopted. 

This  is  the  doctrine  of  the  English  courts,  as  exempli- 
fied in  The  Phoenix,  Spink's  Prize  Cases,  1,  5,  and  The 
Argo,  Id.  p.  52.  It  is  the  doctrine  which  this  court 
believes  to  be  proper  and  correct. 

To  ascertain  the  intention  of  the  Executive  we  must 
look  to  the  words  which  he  uses.  If  the  language  is  plain 
and  clear,  and  the  meaning  not  open  to  discussion,  there 
is  an  end  of  the  matter.  If,  however,  such  is  not  the 
case,  and  interpretation  or  construction  must  be  resorted 
to  for  the  purpose  of  ascertaining  the  precise  meaning 
of  the  text,  it  is  our  duty  with  reference  to  this  public 
instrument  to  make  it  as  broad  in  its  exemptions  as  is 
reasonably  possible. 

If  inferences  must  be  drawn  therefrom  in  order  to  ren- 
der certain  the  limitations  intended,  those  inferences 
should  be,  so  far  as  is  possible,  in  favor  of  the  claimant 
in  behalf  of  the  owners  of  the  vessel. 

The  language  to  justify  an  exemption  of  the  vessel  must, 
it  is  true,  be  found  in  the  proclamation;  yet  if  such  lan- 
guage fail  to  state  with  entire  clearness  the  full  extent  and 


74 

scope  of  such  exemption,  thereby  making  it  necessary  that 
some  interpretation  thereof  should  be  given,  it  is  proper 

tiveri0view^xeeCvi  ^°  re^er  *°  the  Pri°r  views  of  the  Executive  Department 
dence  of  policy.  of  the  Government  as  evidence  of  its  policy  regarding  the 
subject.  This  is  not  for  the  purpose  of  enlarging  the  nat- 
ural and  ordinary  meaning  of  the  words  used  in  the  proc- 
lamation, but  for  the  purpose  of  thereby  throwing  some 
light  upon  the  intention  of  the  Executive  in  issuing  the 
instrument  and  also  to  aid  in  the  interpretation  of  the 
language  employed  therein,  where  the  extent  or  scope  of 
that  language  is  not  otherwise  entirely  plain  and  clear. 
A  reference  to  the  views  that  have  heretofore  been  an- 
nounced by  the  Executive  Department  is  made  in  3  Whar- 
ton,  supra,  and  it  will  be  found  that  they  are  in  entire 
accord  with  the  most  liberal  spirit  for  the  treatment  of 
non-combatant  vessels  of  the  enemy. 
construction  to  \\re  COme  now  to  the  construction  of  the  instrument. 

be  placed  on  the 

t's  proc- It  will  be  seen  that  Congress  on  the  25th  of  April,  1898, 
declared  war  against  Spain,  and  in  the  declaration  it  is  stated 
that  war  had  existed  since  the  21st  of  April  preceding. 
The  President  on  the  26th* of  April  issued  his  proclamation 
regarding  the  principles  to  be  followed  in  the  prosecution 
of  the  war.  It  is  dated  the  da}T  it  was  issued.  The  fourth 
clause  thereof  may  for  convenience  be  here  reproduced,  as 
follows: 

"4.  Spanish  merchant  vessels  in  any  ports  or  places 
within  the  United  States  shall  be  allowed  until  May  21st, 
1898,  inclusive,  for  loading  their  cargoes  and  departing 
from  such  ports  or  places;  and  such  Spanish  merchant 
vessels,  if  met  at  sea  by  &ny  United  States  ship,  shall  be 
permitted  to  continue  their  voyage,  if,  upon  examination 
of  their  papers,  it  shall  appear  that  their  cargoes  were 
taken  on  board  before  the  expiration  of  the  above  term: 
Provided,  that  nothing  herein  contained  shall  apply  to 
Spanish  vessels  having  on  board  any  officer  in  the  military 
or  naval  service  of  the  enemy;  or  any  coal  (except  such  as 
may  be  necessary  for  their  voyage),  or  any  other  article 
prohibited  or  contraband  of  war,  or  any  dispatch  of  or  to 
the  Spanish  Government." 

Meaningofcer-  What  is  included  by  the  words  "  Spanish  merchant  ves- 
instrument.  sels  in  any  ports  or  places  within  the  United  States  shall 
be  allowed  until  May  21, 1898,  inclusive,  for  loading  their 
cargoes  and  departing  from  such  ports  or  places "  ?  At 
what  time  must  these  Spanish  vessels  be  "in  any  ports  or 
places  within  the  United  States". in  order  to  be  exempt 


75 

from  capture?  The  time  is  not  stated  in  the  proclama- 
tion, and  therefore  the  intention  of  the  Executive  as  to  the 
time  must  be  inferred.  It  is  a  case  for  construction  or 
interpretation  of  the  language  employed. 

The  language  is  open  to  several  possible  constructions. 
It  might  be  said  that  in  describing  Spanish  merchant  ves- 
sels in  any  ports,  etc.,  it  was  meant  to  include  only  those 
which  were  in  such  ports  on  the  day  when  the  proclama- 
tion was  issued,  April  26.  Or  it  might  be  held  (in  accord- 
ance with  the  decision  of  the  District  Court)  to  include 
those  that  were  in  such  ports  on  the  21st  of  April,  the  day 
that  war  commenced,  as  Congress  declared.  Or  it  might 
be  construed  so  as  to  include  not  alone  those  vessels  that 
were  in  port  on  that  day,  but  also  those  that  had  sailed  there- 
from on  any  day  up  to  and  including  the  21st  of  May,  the 
last  day  of  exemption,  and  were,  when  captured,  continu- 
ing their  voyage,  without  regard  to  the  particular  date  of 
their  departure  from  port,  whether  immediately  before  or 
subsequently  to  the  commencement  of  the  war  or  the 
issuing  of  the  proclamation. 

The  District  Judge,  before  whom  several  cases  were 
tried  together,  held  that  the  date  of  the  commencement  of 
the  war  (April  21)  was  the  date  intended  by  the  Execu- 
tive; that  as  the  proclamation  of  the  22d  of  April  gave 
thirty  days  to  neutral  vessels  found  in  blockaded  ports, 
it  was  but  reasonable  to  consider  that  the  same  number  of 
da}Ts,  commencing  at  the  outbreak  of  the  war,  should  be 
allowed  so  as  to  bring  it  to  the  21st  of  Ma}',  the  day 
named;  that  although  a  retrospective  effect  is  not  usually 
given  to  statutes,  yet  the  question  always  is,  what  was  the 
intention  of  the  legislature? 

He  also  said  that  "the  intention  of  the  Executive  was 
to  fully  recognize  the  recent  practice  of  civilized  nations, 
and  not  to  sanction  or  permit  the  seizure  of  the  vessels  of 
the  enenw  within  the  harbors  of  the  United  States  at  the 
time  of  the  commencement  of  the  war,  or  to  permit  them 
to  escape  from  ports  to  be  seized  immediately  upon  enter- 
ing upon  the  high  seas."  (See  preamble  to  proclamation.) 

In  the  Buena  Ventura,  the  case  at  bar,  the  District 
Judge  held  that  her  case  "clearly  does  not  come  within 
the  language  of  the  proclamation.'' 

It  is  true  the  proclamation  did  not  in  so  many  words 
provide  that  vessels  which  had  loaded  in  a  port  of  the 
United  States  and  sailed  therefrom  before  the  commence- 
ment of  the  war  should  be  entitled  to  continue  their  voyage. 


76 

but  we  think  that  those  vessels  are  clearly  within  the 
intention  of  the  proclamation  under  the  liberal  construc- 
tion we  are  bound  to  give  to.  that  document. 

iamat£n0was°to  ^n  intention  to  include  vessels  of  this  class  in  the  exemp- 
thariuid  VsaTied  ^oa  ^ rom  capture  seems  to  us  a  necessary  consequence  of 
k|n°re  war  be'the  language  used  in  the  proclamation  when  interpreted 
according  to  the  known  views  of  this  Government  on  the 
subject  and  which  it  is  to  be  presumed  were  the  views  of 
the  Executive.  The  vessel  when  captured  had  violated  no 
law,  she  had  sailed  from  Ship  Island  after  having  obtained 
written  permission,  in  accordance  with  the  laws  of  the 
United  States,  to  proceed  to  Norfolk  in  Virginia,  and  the 
permission  had  been  signed  by  the  deputy  collector  of  the 
port  and  the  fees  therefor  paid  by  the  ship.  She  had  a 
cargo  of  lumber,  loaded  but  a  short  time  before  the  com- 
mencement of  the  war,  and  she  left  the  port  but  forty 
eight  hours  prior  to  that  event.  The  language  of  the 
proclamation  certainly  does  not  preclude  the  exemption 
of  this  vessel,  and  it  is  not  an  unnatural  or  forced  con- 
struction of  the  fourth  clause  to  say  that  it  includes  this 
case. 

The  omission  of  any  date  in  this  clause,  upon  which  the 
vessel  must  be  in  a  port  of  the  United  States,  and  prior  to 
which  the  exemption  would  not  be  allowed,  is  certainly 
very  strong  evidence  that  such  a  date  was  not  material,  so 
long  as  the  loading  and  departure  from  our  ports  were 
accomplished  before  the  expiration  of  May  21.  It  is  also 
evident  from  the  language  used  that  the  material  concern 
was  to  fix  a  time  in  the  future,  prior  to  the  expiration  of 
which  vessels  of  the  character  named  might  sail  from  our 
Particuiardate  ports  and  be  exempt  from  capture.  The  particular  time 

of  sailing  unim-  ,  .    ,         ,         .        ,.  ,,  j          •!•  e 

portant  if  prior  at  which  the  loading  of  cargoes  and  sailing  from  our 
proclamation. m  ports  should  be  accomplished  was  obviously  unimportant, 
provided  it  was  prior  to  the  time  specified.  Whether  it  was 
before  or  after  the  commencement  of  the  war,  would  be 
entirely  immaterial.  This  seems  to  us  to  be  the  intention  of 
the  Executive,  derived  from  reading  the  fourth  clause  with 
reference  to  the  general  rules  of  interpretation  already 
spoken  of,  and  we  think  there  is  no  language  in  the  proc- 
lamation which  precludes  the  giving  effect  to  such  intention. 
Its  purpose  was  to  protect  innocent  merchantmen  of  the 
enemy  who  had  been  trading  in  our  ports  from  capture, 
provided  they  sailed  from  such  ports  before  a  certain 
named  time  in  the  future,  and  that  purpose  would  be 


77 

wholly  unaffected  by  the  fact  of  a  .sailing1  prior  to  the  war. 
That  fact  was  immaterial  to  the  scheme  of  the  proclama- 
tion, gathered  from  all  its  language. 

We  do  not  assert  that  the  clause  would  apply  to  a  vessel 
which  had  left  a  port  of  the  United  States  prior  to  the 
commencement  of  the  war  and  had  arrived  at  a  foreign 
port  and  there  discharged  her  cargo,  and  had  then  left  for 
another  foreign  port  prior  to  May  21.  The  instructions  pli|f  o 
to  United  States  ships,  contained  in  the  fourth  clause,  ^ 
to  permit  the  vessels  "to  continue  their  voyage"  would s. port 
limit  the  operation  of  the  clause  to  those  vessels  that  were 
still  on  their  original  voyage  from  the  United  States,  and 
had  taken  on  board  their  cargo  (if  any  they  had)  at  a  port 
of  the  United  States  before  the  expiration  of  the  term 
mentioned.  The  exemption  would  probably  not  apply  to 
such  a  case  as  The  Phoenix,  (Spink's  Prize  Cases,  1).  That 
case  arose  out  of  the  English  Order  in  Council,  made  at 
the  commencement  of  the  Crimean  war.  The  vessel  had 
sailed  from  an  English  port  in  the  middle  of  February, 
1854,  with  a  cargo,  bound  for  Copenhagen,  and  having 
reached  that  port  and  discharged  her  cargo  b}T  the  middle 
of  March,  she  had  sailed  therefrom  on  the  10th  of  April, 
bound  to  a  foreign  port,  and  was  captured  on  the  12th  of 
April  while  proceeding  on  such  voyage.  The  Order  in 
Council  was  dated  the  29th  of  March,  1854,  and  provided 
that  "Russian  merchant  vessels',  in  amr  ports  or  places 
within  her  Majesty's  dominions,  shall  be  allowed  until  the 
tenth  day  of  May  next,  six  weeks  from  the  date  hereof, 
for  loading  their  cargoes  and  departing  from  such  ports 
or  places,"  etc.  The  claim  of  exemption  was  made  on  the 
ground  that  the  vessel  had  been  in  an  English  port,  and 
although  she  sailed  therefrom  in  the  middle  of  February 
to  Copenhagen  and  had  there  discharged  her  cargo,  before 
the  Order  in  Council  was  promulgated,  yet  it  was  still 
urged  that  she  was  entitled  to  exemption  from  capture. 
The  court  held  the  claim  was  not  well  founded,  and  that  it 
could  not  by  any  latitude  of  construction  hold  a  vessel  to 
have  been  in  an  English  port  on  the  29th  of  March,  which 
on  that  day  was  lying  in  the  port  of  Copenhagen,  having 
at  that  time  discharged  the  cargo  which  she  had  taken  from 
the  English  port.  It  is  true  the  court  took  the  view  that 
the  vessel  must  at  all  events  have  been  in  an  English  port 
on  the  -2!»th  of  March  in  order  to  obtain  exemption,  and  if 
not  there  on  that  day,  the  vessel  did  not  come  within  the 


78 

terms  of  the  order  and  was  not  exempt  from  capture. 
From  the  language  of  the  opinion  in  that  case  it  would 
seem  not  only  that  a  vessel  departing  the  day  before  the 
29th  of  March  would  not  come  within  the  exemption,  but 
that  a  vessel  arriving  the  day  after  the  29th,  and  departing 
before  the  10th  of  May  following,  would  also  fail  to  do  so; 
that  the  vessel  must  have  been  in  an  English  port  on  the 
very  day  named,  and  if  it  departed  the  day  before  or  arrived 
the  day  after,  it  was  not  covered  by  the  order. 

meaenwirinCri"  ^he  French  Government  also,  on  the  outbreak  of  the 
Crimean  war,  decreed  a  delay  of  six  weeks,  beginning  on 
the  date  of  the  decree,  to  Russian  merchant  vessels  in 
which  to  leave  French  ports.  Russia  issued  the  same 
kind  of  a  decree,  and  other  nations  have  at  times  made 
the  same  provisions.  It  is  claimed  that  they  confine  the 
exemption  to  vessels  that  are  actually  within  the  ports  of 
the  nation  at  the  date  of  issuing  the  decree  or  order. 

We  are  not  inclined  to  put  so  narrow  a  construction 
upon  the  language  used  in  this  proclamation.  The  inter- 
pretation which  we  have  given  to  it,  while  it  may  be  more 
liberal  than  the  other,  is  still  one  which  may  properlv  be 
indulged  in. 
vessels  sailing  jf  this  vessel,  instead  of  sailing  on  the  19th,  had  not 

shortly    before 

and  shortly  after  sailed  until  the  21st  of  April,  the  court  below  says  she 

war  began  are  m  J 

same  case.  would  have  been  exempt  from  capture.  In  truth,  she  was 
from  her  character  and*  her  actual  employment  just  as 
much  the  subject  of  liberal  treatment,  and  was  as  equita- 
bly entitled  to  an  exemption  when  sailing  on  the  19th,  as 
she  would  have  been  had  she  waited  until  the  21st.  No 
fact  had  occurred  since  her  sailing  which  altered  her  case 
in  principle  from  the  case  of  a  vessel  which  had  been  in 
port  on,  though  sailing  after,  the  21st.  To  attribute  an 
intention  on  the  part  of  the  Executive  to  exempt  a  vessel 
if  she  sailed  on  or  after  the  21st  of  April,  and  before  the 
21st  of  May,  and  to  refuse  such  exemption  to  a  vessel  in 
precisely  the  same  situation,  only  sailing  before  the  2 1st, 
would,  as  we  think,  be  without  reasonable  justification. 
It  may  safely  be  affirmed  that  he  never  had  any  such  dis- 
tinction in  mind  and  never  intended  it  to  exist.  There  is 
nothing  in  the  nature  of  the  two  cases  calling  for  a  differ- 
ence in  their  treatment.  They  both  alike  called  for  pre- 
cisely the  same  rule,  and  if  there  be  language  in  the  clause 
or  proclamation  for  which  an  inference  can  be  drawn 
favorable  to  the  exemption,  and  none  which  precludes  it, 


79 

we  are  bound  to  hold  that  the  exemption  is  given.  We 
think  the  language  of  the  proclamation  does  permit  the 
inference  and  that  there  is  none  which  precludes  it. 

We  are  aware  of  no  adjudications  of  our  own  court  as 
to  the  meaning  to  be  given  to  words  similar  to  those  con-  construction 
contained  in  the  proclamation,  and  it  may  be  that  a  step 
in  advance  is  now  taken  upon  this  subject.  Where,  how- 
ever, the  words  are  reasonably  capable  of  an  interpreta- 
tion which  shall  include  a  vessel  of  this  description  in  the 
exemption  from  capture,  we  are  not  averse  to  adopting  it, 
even  though  this  court  may  be  the  first  to  do  so.  If  the 
Executive  should  hereafter  be  inclined  to  take  the  other 
view,  the  language  of  his  proclamation  could  be  so 
altered  as  to  leave  no  doubt  of  that  intention,  and  it 
would  be  the  duty  of  this  court  to  be  guided  and  con- 
trolled by  it. 

Deciding  as  we  do  in  regard  to  the  fourth  clause,  it  be- 
comes unnecessary  to  examine  the  other  grounds  for  a 
reversal  discussed  at  the  bar. 

The  question  of  costs  then  arises.     We  had  occasion  in  . 

ngues. 

The  Olinde  Rodrigues,  174,  U.  S.  510,  to  examine  that 
question  in  relation  to  the  existence  of  probable  cause  for 
making  the  capture.  In  that  case  it  was  held  that  such 
probable  cause  did  exist,  and  although  the  facts  therein 
proved  did  not  commend  the  vessel  to  the  favorable  con- 
sideration of  the  court,  yet  upon  a  careful  review  of  the 
entire  evidence  we  held  that  we  were  not  compelled  to 
proceed  to  the  extremity  of  condemning  the  vessel.  Resti- 
tution was,  therefore,  awarded,  but  without  damages. 
Payment  of  the  costs  and  expenses  incident  to  her  custody 
and  preservation,  and  of  all  costs  in  the  case  except  the 
fees  of  counsel,  were  imposed  upon  the  ship. 

In  this  case,  but  for  the  proclamation  of  April  26,  the 
ship  would  have  been  liable  to  seizure  and  condemnation 
as  enemy's  property.  At  the  time  of  seizure,  however, 
(April  22.)  that  proclamation  had  not  been  issued,  and 
hence  there  was  probable  cause  for  her  seizure,  although 
the  vessel  was  herself  entirely  without  fault.  The  subse- 
quent issuing  of  the  proclamation  covering  the  case  of  a 
vessel  situated  as  was  this  one  took  away  the  right  to  con- 
demn which  otherwise  would  have  existed.  Thus,  at  the 
time  of  seizure,  both  parties,  the  capturing  and  the  cap- 
tured ship,  were  without  fault,  and  while  we  reverse  the 
judgment  of  condemnation  and  award  restitution,  we  think 


80 

it  should  be  without  damages  or  costs  in  favor  of  the  ves- 
sel captured. 

judgment.  The  ship  having  been  sold,  the  moneys  arising  from 

the  sale  must  Repaid  to  the  claimant  without  the  deduc- 
tion of  any  costs  arising  in  the  proceeding,  hut  after 
deducting  the  expenses  properly  incident  to  her  custody 
and  preservation  up  to  the  time  of  her  sale,  and  it  is  so 
ordered. 

THE  CHIEF  JUSTICE  and  MR.  JUSTICE  GRAY  and  MR. 
JUSTICE  McKENNA  dissented. 


Statement 
the  case. 


CASES  OF  THE  PAQUETE  HABANA  AND  THE  LOLA. 

(Vol.  175,  United  States  Reports,  p.  677.    Decided  January  8,  1900.    MR.  JUSTICE 
GRAY  delivered  the  opinion  of  the  court.) 

The  cases  are  stated  in  the  opinion  of  the  court. 

MR.  JUSTICE  GRAY  delivered  the  opinion  of  the  court. 

of     These  are  two  appeals  from  decrees  of  the  District  Court 

of  the  United  States  for  the  Southern  District  of  Florida, 

condemning  two  fishing  vessels  and  their  cargoes  as  prizes 

of  war. 

Each  vessel  was  a  fishing  smack,  running  in  and  out  of 
Havana,  and  regularly  engaged  in  fishing  on  the  coast  of 
Cuba;  sailed  under  the  Spanish  flag;  was  owned  by  a 
Spanish  subject  of  Cuban  birth,  living  in  the  city  of 
Havana;  was  commanded  by  a  subject  of  Spain,  also  re- 
siding in  Havana;  and  her  master  and  crew  had  no  interest 
in  the  vessel,  but  were  entitled  to  shares,  amounting  in  all 
to  two  thirds,  of  her  catch,  the  other  third  belonging  to  her 
owner.  Her  cargo  consisted  of  fresh  fish,  caught  by  her 
crew  from  the  sea,  put  on  board  as  they  were  caught,  and 
kept  and  sold  alive.  Until  stopped  by  the  blockading 
squadron,  she  had  no  knowledge  of  the  existence  of  the 
war,  or  of  any  blockade.  She  had  no  arms  or  ammunition 
on  board,  and  made  no  attempt  to  run  the  blockade  after 
she  knew  of  its  existence,  nor  any  resistance  at  the  time 
of  the  capture. 

The  Paquete  Habana  was  a  sloop,  43  feet  long  on  the 
keel  and  of  25  tons  burden,  and  had  a  crew  of  three  Cubans, 
including  the  master,  who  had  a  fishing  license  from  the 
Spanish  Government,  and  no  other  commission  or  license. 
She  left  Havana  March  25,  1898;  sailed  along  the  coast  of 
Cuba  to  Cape  San  Antonio  at  the  western  end  of  the 
island,  and  there  fished  for  twenty-five  days,  lying  between 


81 

the  reefs  off  the  cape,  within  the  territorial  waters  of 
Spain;  and  then  started  back  for  Havana,  with  a  cargo  of 
about  40  quintals  of  live  fish.  On  April  25,  1898,  about 
two  miles  off  Mariel,  and  eleven  miles  from  Havana,  she 
was  captured  b}~  the  United  States  gunboat  Castine. 

The  Lola  was  a  schooner,  51  feet  long  on  the  keel,  and 
of  35  tons  burden,  and  had  a  crew  of  six  Cubans,  including 
the  master,  and  no  commission  or  license.  She  left 
Havana  April  11,  1898,  and  proceeded  to  Campeachy 
Sound  off  Yucatan,  fished  there  eight  days,  and  started 
back  for  Havana  with  a  cargo  of  about  10,000  pounds  of 
live  fish.  On  April  26,  1898,  near  Havana,  she  was 
stopped  by  the  United  States  steamship  Cincinnati,  and 
was  warned  not  to  go  into  Havana,  but  was  told  that  she 
would  be  allowed  to  land  at  Bahia  Honda.  She  then 
changed  her  course,  and  put  for  Bahia  Honda,  but  on  the 
next  morning,  when  near  that  port,  was  captured  by  the 
United  States  steamship  Dolphin. 

Both  the  fishing  vessels  were  brought  by  their  captors 
into  Key  West.  A  libel  for  the  condemnation  of  each 
vessel  and  her  cargo  as  prize  of  war  was  there  filed  on 
April  27,  1898;  a  claim  was  interposed  by  her  master,  on 
behalf  of  himself  and  the  other  members  of  the  crew,  and 
of  her  owner;  evidence  was  taken,  showing  the  facts  above 
stated;  and  on  May  30,  1898,  a  final  decree  of  condemna- 
tion and  sale  was  entered,  "the  court  not  being  satisfied 
that  as  a  matter  of  law,  without  any  ordinance,  treaty  or 
proclamation,  fishing  vessels  of  this  class  are  exempt  from 
seizure." 

Each  vessel  was  thereupon  sold  b}'  auction;  thePaquete 
Habana  for  the  sum  of  $490;  and  the  Lola  for  the  sum  of 
§800.  There  was  no  other  evidence  in  the  record  of  the 
value  of  either  vessel  or  of  her  cargo. 

******* 

We  are  then  brought  to  the  consideration  of  the  ques- 
tion whether,  upon  the  facts  appearing  in  these  records, 
the  fishing  smacks  were  subject  to  capture  by  the  armed 
vessels  of  the  United  States  during  the  recent  war  with 
Spain. 

By  an  ancient  usage  among  civilized  nations,  beginning 
centuries  ago,  and  gradually  ripening  into  a  rule  of  inter- 
national law,  coast  fishing  vessels,  pursuing  their  vocation 
of  catching  and  bringing  in  fresh  fish,  have  been  recog- 
nized as  exempt,  with  their  cargoes  and  crews,  from  cap- 
ture as  prize  of  war. 
2056—04 6 


82 

ru?e°Ixempting  This  doctrine,  however,  has  been  earnestly  contested  at 
coast  fishing  ves-  ^ne  kar.  an(j  no  complete  collection  of  the  instances  illus- 
trating it  is  to  be  found,  so  far  as  we  are  aware,  in  a  single 
published  work,  although  many  are  referred  to  and  dis- 
cussed by  the  writers  on  international  law,  notably  in  2 
Ortolan,  Regies  Internationales  et  Diplomatic  de  la  Mer, 
(4th  ed.)  lib.  3,  c.  2,  pp.  51-56;  in  4  Calvo,  Droit  Inter- 
national, (5th  ed.)  §§  2367-2373;  in  De  Boeck,  Propriete 
Privee  Ennemie  sous  Pavilion  Ennemi,  §§  191-196;  and 
in  Hall,  International  Law,  (4th  ed.)  §  148.  It  is  there- 
fore worth  the  while  to  trace  the  history  of  the  rule,  from 
the  earliest  accessible  sources,  through  the  increasing  rec- 
ognition of  it,  with  occasional  setbacks,  to  what  we  ma}" 
now  justly  consider  as  its  final  establishment  in  our  own 
countiy  and  generally  throughout  the  civilized  world, 
emanated  from  The  earliest  acts  of  any  government  on  the  subject, 
mentioned  in  the  books,  either  emanated  from,  or  were 
approved  by,  a  King  of  England. 

.  °f  H°3  I"  1403  and  1406,  Henry  IV  issued  orders  to  his  admirals 
and  other  officers,  entitled  "Concerning  Safety  for  Fish- 
ermen— De  Securitate  pro  Piscatwibus"  By  an  order  of 
October  26,  1403,  reciting  that  it  was  made  pursuant  to  a 
treaty  between  himself  and  the  King  of  France;  and  for 
the  greater  safety  of  the  fishermen  of  either  country,  and 
so  that  they  could  be,  and  carry  on  their  industrv,  the 
more  safely  on  the  sea,  and  deal  with  each  other  in  peace; 
and  that  the  French  King  had  consented  that  English  fish- 
ermen should  be  treated  likewise;  it  was  ordained  that 
French  fishermen  might,  during  the  then  pending  season 
for  the  herring  fishery,  safely  fish  for  herrings  and  all 
other  fish,  from  the  harbor  of  Gravelines  and  the  island 
of  Thanet  to  the  mouth  of  the  Seine  and  the  harbor  of 
Hautoune.  And  by  an  order  of  October  5,  1406,  he  took 
into  his  safe  conduct,  and  under  his  special  protection, 
guardianship  and  defence,  all  and  singular  the  fishermen 
of  France,  Flanders  and  Brittany,  with  their  fishing  vessels 
and  boats,  everywhere  on  the  sea,  through  and  within  his 
dominions,  jurisdictions  and  territories,  in  regard  to  their 
fishery,  while  sailing,  coming  and  going,  and,  at  their 
pleasure,  freely  and  lawf ulty  fishing,  delaying  or  proceed- 
ing, and  returning  homeward  with  their  catch  of  fish,  with- 
out any  molestation  or  hindrance  whatever;  and  also  their 
fish,  nets,  and  other  property  and  goods  soever;  and  it 
was  therefore  ordered  that  such  fishermen  should  not  be 
interfered  with,  provided  they  should  comport  themselves 


83 

well  and  properly,  and  should  not,  by  color  of  these  pres- 
ents, do  or  attempt,  or  presume  to  do  or  attempt,  any- 
thing that  could  prejudice  the  King,  or  his  Kingdom  of 
England,  or  his  subjects.  8  Rymer's  Foedera,  336,  451. 

The  treaty  made  October  2,  1521,  between  the  Emperor  bj^eeae^  ^a^ 
Charles  V  and  Francis  I  of  France,  through  their  ambas- v  and  Francis  i. 
sadors,  recited  that  a  great  and  fierce  war  had  arisen  be- 
tween them,  because  of  which  there  had  been,  both  by 
land  and  by  sea,  frequent  depredations  and  incursions  on 
either  side,  to  the  grave  detriment  and  intolerable  injur}r 
of  the  innocent  subjects  of  each;  and  that  a  suitable  time 
for  the  herring  fishery  was  at  hand,  and,  by  reason  of  the 
sea  being  beset  by  the  enemy,  the  fishermen  did  not  dare 
to  go  out,  whereby  the  subject  of  their  industry,  bestowed 
by  heaven  to  allay  the  hunger  of  the  poor,  would  wholly 
fail  for  the  year,  unless  it  were  otherwise  provided — 
quo  fit,  ut  piscaturse  commoditas,  ad  pauperwn  levandam 
famein  a  cvdesti  numine  concessa,  cessare  hoc  anno  omnino 
debeat,  nisi  aliter  promdeatur.  And  it  was  therefore 
agreed  that  the  subjects  of  each  sovereign,  fishing  in  the 
sea,  or  exercising  the  calling  of  fishermen,  could  and 
might,  until  the  end  of  the  next  January,  without  incurring 
any  attack,  depredation,  molestation,  trouble  or  hindrance 
soever,  safely  and  freel}*,  everywhere  in  the  sea,  take  her- 
rings and  ever}-  other  kind  of  fish,  the  existing  war  by 
land  and  sea  notwithstanding;  and  further  that,  during 
the  time  aforesaid,  no  subject  of  either  sovereign  should 
commit,  or  attempt  or  presume  to  commit,  an}r  depreda- 
tion, force,  violence,  molestation  or  vexation,  to  or  upon 
such  fishermen,  or  their  vessels,  supplies,  equipments,  nets 
and  fish,  or  other  goods  soever  truly  appertaining  to  fish- 
ing. The  treat}'  was  made  at  Calais,  then  an  English  pos- 
session. It  recites  that  the  ambassadors  of  the  two  sov- 
ereigns met  there  at  the  earnest  request  of  Henry  VIII, 
and  with  his  countenance,  and  in  the  presence  of  Cardinal 
Wolsey.  his  chancellor  and  representative.  And  towards 
the  end  of  the  said  treaty  it  is  agreed  that  the  said  King  and 
his  said  representative,  "by  whose  means  the  treaty 
stands  concluded,  shall  be  conservators  of  the  agreements 
therein,  as  if  thereto  by  both  parties  elected  and  chosen." 
4  Dumont,  Corps  Diplomatique,  pt.  1,  pp.  352,  353. 

The  herring  fishery  was  permitted,  in  time  of  war,  by 
French  and  Dutch  edicts  in  1536.  Bynkershoek.  Qua>- 
stioncs  .Juris  Publkw.  lib.  1.  c.  3;  I  Kmerigon  des  Assur- 
ances, c.  4,  sect.  !»:  c.  ]•_>,  sect.  li».  $  8. 


84 

re-  France,  f rom  remote  times,  set  the  example  of  alleviat- 
mote  times.  ing  the  evils  of  war  in  favor  of  all  coast  fishermen.  In 
the  compilation  entitled  Us  et  Continues  de  la  Mer,  pub- 
lished by  Cleirac  in  1661,  and  in  the  third  part  thereof, 
containing  "Maritime  or  Admiralty  Jurisdiction — la 
Jurisdiction  de  la  Marine  ou  dAdmiraute — "as  well  in  time 
of  peace  as  in  time  of  war,"  article  80  is  as  follows:  "The 
admiral  may  in  time  of  war  accord  fishing  truces— tresves 
pescJieresses — to  the  enemy  and  to  his  subjects;  provided 
that  the  enemy  will  likewise  accord  them  to  Frenchmen.'" 
Cleirac,  544.  Under  this  article,  reference  is  made  to 
articles  49  and  79  respectively  of  the  French  ordinances 
concerning  the  Admiralty  in  1543  and  1584,  of  which  it  is 
but  a  reproduction.  4  Pardessus,  Collection  de  Lois  Marl- 
times,  319;  2  Ortolan,  51.  And  Cleirac  adds,  in  a  note, 
this  quotation  from  Froissart's  Chronicles:  "Fishermen 
on  the  sea,  whatever  war  there  were  in  France  and  Eng- 
land, never  did  harm  to  one  another;  so  they  are  friends, 
and  help  one  another  at  need — Pescheurs  sur  mer,  quelque 
guerre  qui  soit  en  France  et  Angleterre,  jamais  ne  sefirent 
mal  Tun  a  Tautre;  ainpois  sont  amis,  et  s'aydent  Tun  a 
T mitre  an  besoin." 
French  prao-  The  same  custom  would  seem  to  have  prevailed  in 

tice  till    end  of  L 

nth  century.  k  ranee  until  towards  the  end  or  the  seventeenth  century. 
For  example,  in  1675,  Louis  XIV  and  the  States  General 
of  Holland,  by  mutual  agreement,  granted  to  Dutch  and 
French  fishermen  the  liberty,  undisturbed  by  their  vessels 
of  war,  of  fishing  along  the  coasts  of  France,  Holland  and 
England.  D'Hauterive  et  De  Cussy,  Traites  de  Com- 
Discontinu-merce,  pt.  1,  vol.  2,  p.  278.  But  by  the  ordinances  of 

ance   of    early  '    *  ,.  . 

practice  in  1681 1681   and   1692  the  practice  was  discontinued,   because, 

aud  1692.  r 

Valin  sa}7s,  of  the  faithless  conduct  of  the  enemies  of 
France,  who,  abusing  the  good  faith  with  which  she  had 
always  observed  the  treaties,  habitually  carried  off  her 
fishermen,  while  their  own  fished  in  safety.  2  Valin  sur 
1'Ordonnance  de  la  Marine,  (1776)  689,  690;  2  Ortolan, 
52;  De  Boeck  §  192. 
Doctrine  famii-  The  doctrine  which  exempts  coast  fishermen  with  their 

iar  to  the  United  ,,  •  /•  i 

states  since  the  vessels  and  cargoes  from  capture  as  a  prize  or  war  has 
pendence.       e-been  familiar  to  the  United  States  from  the  time  of  the 

War  of  Independence. 
French  orders     On  June  5,  1779,  Louis  XVI,  our  allv  in  that  war,  ad- 

in  1779  and  1780.    , 

dressed  a  letter  to  his  admiral,  informing  him  that  the 
wish  he  had  always  had  of  alleviating,  as  far  as  he  could, 
the  hardships  of  war,  had  directed  his  attention  to  that 


85 

class  of  his  subjects  which  devoted  itself  to  the  trade  of 
fishing,  and  had  no  other  means  of  livelihood;  that  he  had 
thought  that  the  example  which  he  should  give  to  his  ene- 
mies, and  which  could  have  no  other  source  than  the  sen- 
timents of  humanity  which  inspired  him,  would  determine 
them  to  allow  to  fishermen  the  same  facilities  which  he 
should  consent  to  grant;  and  that  he  had  therefore  given 
orders  to  the  commanders  of  all  his  ships  not  to  disturb 
English  fishermen,  nor  to  arrest  their  vessels  laden  with 
fresh  fish,  even  if  not  caught  by  those  vessels;  provided 
they  had  no  offensive  arms,  and  were  not  proved  to  have 
made  any  signals  creating  a  suspicion  of  intelligence  with 
the  enemy;  and  the  admiral  was  directed  to  communicate 
the  King's  intentions  to  all  officers  under  his  control.  By 
a  royal  order  in  council  of  November  6,  1780,  the  former 
orders  were  confirmed;  and  the  capture  and  ransom,  by  a 
French  cruiser,  of  The  John  and  Sarah,  an  English  vessel, 
coming  from  Holland,  laden  with  fresh  fish,  were  pro- 
nounced to  be  illegal.  2  Code  des  Prises,  (ed.  1784)  721, 
901,  903. 

Among  the  standing  orders  made  by  Sir  James  Mar- 
riott, Judge  of  the  English  High  Court  of  Admiralty,  was 
one  of  April  11,  1780,'  by  which  it  was  "ordered,  that  all 
causes  of  prize  of  fishing  boats  or  vessels  taken  from  the 
enemy  may  be  consolidated  in  one  monition,  and  one 
sentence  or  interlocutory,  if  under  fift}T  tons  burden,  and 
not  more  than  six  in  number."  Marriott's  Formulary, 
4.  But  by  the  statements  of  his  successor,  and  of  both  Practice  dur- 

^  .  ing    Revolution- 

French  and  English  writers,  it  appears  that  England,  asarywar. 

well  as  France,  during  the  American  Revolutionary  War, 
abstained  from  interfering  with  the  coast  fisheries.  The 
Young  Jacob  and  Johanna,  1  C.  Rob.  20;  2  Ortolan,  53; 
Hall,  S  US. 

In  the  treat v  of  1785  between  the  United  States  and    Rule   recog- 

_«•  .   .  *  /     i  .    i  1,1  .          nized  in  treaties 

Prussia,  article  23,  (which  was  proposed  bv  the  American  of  united  states 

n  •      •  T    I  -r%       •        •  "    T-         i  !•  ,  and    Prussia    in 

Commissioners,    John    Adams,    Benjamin   iranklm   andi'85,  1799,  and 

1828 

Thomas  Jefferson,  and  is  said  to  have  been  drawn  up  by 
Franklin,)  provided  that,  if  war  should  arise  between  the 
contracting  parties,  "all  women  and  children,  scholars  of 
every  faculty,  cultivators  of  the  earth,  artisans,  manufac- 
turers and  fishermen,  unarmed  and  inhabiting  unfortified 
towns,  villages  or  places,  and  in  general  all  others  whose 
occupations  are  for  the  common  subsistence  and  benefit  of 
mankind,  shall  be  allowed  to  continue  their  respective 
employments,  and  shall  not  be  molested  in  their  persons; 


86 

nor  shall  their  houses  or  goods  be  burnt  or  otherwise 
destroyed,  nor  their  fields  wasted,  by  the  armed  force  of 
the  enemy,  into  whose  power,  by  the  events  of  war,  they 
may  happen  to  fall;  but  if  anything  is  necessary  to  be 
taken  from  them  for  the  use  of  such  armed  force,  the  same 
shall  be  paid  for  at  a  reasonable  price."  8  Stat.  96;  1 
Kent  Com.  91  note;  Wheaton's  History  of  the  Law  of 
Nations.  306,  308.  Here  was  the  clearest  exemption  from 
hostile  molestation  or  seizure  of  the  persons,  occupations, 
houses  and  goods  of  unarmed  fishermen  inhabiting  unfor- 
tified places.  The  article  was  repeated  in  the  later  treat- 
ies between  the  United  States  and  Prussia  of  1799  and 
1828.  8  Stat.  174,  384.  And  Dana,  in  a  note  to  his  edi- 
tion of  Wheaton's  International  Law,  says:  "In  many 
treaties  and  decrees,  fishermen  catching  fish  as  an  article 
of  food  are  added  to  the  class  of  persons  whose  occupa- 
tion is  not  to  be  disturbed  in  war."  Wheaton's  Interna- 
tional Law,  (8th  ed.)  §  345,  note  168. 
Recognition  of  Since  the  United  States  became  a  nation,  the  only  serious 

rule  interrupted  •     ,  ,.  />  •/.  j        .e   j.i    " 

during  French  interruptions,  so  far  as  we  are  informed,  of  the  general 
recognition  of  the  exemption  of  coast  fishing  vessels  from 
hostile  capture,  arose  out  of  the  mutual  suspicions  and 
recriminations  of  England  and  France  during  the  wars  of 
the  French  Revolution.' 

In  the  first  years  of  those  wars,  England  having  author- 
ized the  capture  of  French  fishermen,   a  decree  of  the 

1-93.  French  National  Convention  of  October  2,  1793,  directed 

the  executive  power  "  to  protest  against  this  conduct, 
theretofore  without  example;  to  reclaim  the  fishing  boats 
seized;  and,  in  case  of  refusal,  to  resort  to  reprisals." 

17%.  But  in  July,  1796,  the  Committee  of  Public  Safety  ordered 

the  release  of  English  fishermen  seized  under  the  former 
decree,  "  not  considering  them  as  prisoners  of  war."  La 
JVostra  Segnora  de  la  Piedad,  (1801)  cited  below;  2  De 
Cuss}^,  Droit  Maritime,  164,  165;  1  Masse,  Droit  Commer- 
cial, (2d  ed.)  266,  267. 

1798.  On  January  24,  1798,    the   English   Government,   by 

express  order,  instructed  the  commanders  of  its  ships  to 
seize  French  and  Dutch  fishermen  with  their  boats.  6 
Martens,  Recueil  des  Traites,  (2d  ed.)  505;  6  Schoell,  His- 
toire  des  Traites,  119;  2  Ortolan,  53.  After  the  promul- 
gation of  that  order,  Lord  Stowell  (then  Sir  William 
Scott)  in  the  High  Court  of  Admiralty  of  England  con- 
demned small  Dutch  fishing  vessels  as  prize  of  war.  In 
one  case,  the  capture  was  in  April,  1798,  and  the  decree 


87 

was  made  November  13,  1798.  The  Young  Jacob  and 
Johanna,  1  C.  Rob.  20.  In  another  case,  the  decree  was 
made  August  23,  1799.  The  Noydt  Gedacht,  2  C.  Rob. 
137,  note. 

For  the  year  1800  the  orders  of  the  English  and  French 
governments  and  the  correspondence  between  them  may  in  isooand  isoi. 
be  found  in  books  alread^v  referred  to.  6  Martens,  503- 
512;  6  Schoell,  118-120;  2  Ortolan,  53,  54.  The  doings 
for  that  year  mav  be  summed  upas  follows:  On  March 27, 
1800,  the  French  government,  unwilling  to  resort  to  re- 
prisals, ree'nacted  the  orders  given  by  Louis  XVI  in  1780, 
above  mentioned,  prohibiting  any  seizure  by  the  French 
ships  of  English  fishermen,  unless  armed,  or  proved  to 
have  made  signals  to  the  enemy.  On  May  30,  1800,  the 
English  government,  having  received  notice  of  that  action 
of  the  French  government,  revoked  its  order  of  January 
24,  1798.  But,  soon  afterwards,  the  English  government 
complained  that  French  fishing  boats  had  been  made  into 
fire  boats  at  Flushing,  as  well  as  that  the  French  govern- 
ment had  impressed,  and  had  sent  to  Brest,  to  serve  in  its 
flotilla,  French  fishermen  and  their  boats,  even  those  whom 
the  English  had  released  on  condition  of  their  not  serving; 
and  on  January  21, 1801,  summarily  revoked  its  last  order, 
and  again  put  in  force  its  order  of  January  24,  1798.  On 
February  16,  1801,  Napoleon  Bonaparte,  then  First  Con- 
sul, directed  the  French  commissioner  at  London  to  return 
at  once  to  France,  first  declaring  to  the  English  govern- 
ment that  its  conduct,  "contrary  to  all  the  usages  of  civil- 
ized nations,  and  to  the  common  law  which  governs  them, 
even  in  time  of  war,  gave  to  the  existing  war  a  character 
of  rage  and  bitterness  which  destroyed  even  the  relations 
usual  in  a  loyal  war,"  and  "tended  only  to  exasperate  the 
two  nations,  and  to  put  off  the  term  of  peace;"  and  that 
the  French  government,  having  always  made  it  "a  maxim 
to  alleviate  as  much  as  possible  the  evils  of  war,  could  not 
think,  on  its  part,  of  rendering  wretched  fishermen  victims 
of  a  prolongation  of  hostilities,  and  would  abstain  from  all 
reprisals. " 

On  March  16,  1801,  the  Addington  ministry,  having    Freedom    of 
come  into  power  in  England,  revoked  the  orders  of  itsaglin    allowed! 
predecessors  against  the  French  fishermen;  maintaining, 
however,  that  "  the  freedom  of  fishing  was  nowise  founded 
upon  an  agreement,  but  upon  a  simple  concession: "  that 
"thi.-  concession  would  be  always  subordinate  to  the  con- 
venience of  the  moment. "and  thai  "  it  was  never  extended 


88 

to  the  great  fisheiy,  or  to  commerce  in  oysters  or  in  fish." 
And  the  freedom  of  the  coast  fisheries  was  again  allowed 
on  both  sides.  6  Martens,  514;  6  Schoell,  121;  2  Ortolan, 
54;  Manning,  Law  of  Nations,  (Amos  ed.)  206. 

The  Young  Jo-     Lord  Stowell's  judgment  in  The  Young  Jacob  and  Jo- 
ia'  hanna,  1  C.  Rob.  20,  above  cited,  was  much  relied  on  by 
the  counsel  for  the  United  States,  and  deserves  careful 
consideration. 

The  vessel  there  condemned  is  described  in  the  report  as 
"a  small  Dutch  fishing  vessel  taken  April,  1798,  on  her 
return  from  the  Dogger  Bank  to  Holland; "  and  Lord  Stow- 
ell,  in  delivering  judgment,  said:  "In  former  wars,  it  has 
not  been  usual  to  make  captures  of  these  small  fishing  ves- 
sels; but  this  rule  was  a  rule  of  comity  only,  and  not  of 
legal  decision;  it  has  prevailed  from  views  of  mutual 
accommodation  between  neighboring  countries,  and  from 
tenderness  to  a  poor  and  industrious  order  of  people.  In 
the  present  war  there  has,  I  presume,  been  sufficient  rea- 
son for  changing  this  mode  of  treatment,  and,  as  they  are 
brought  before  me  for  my  judgment,  they  must  be  referred 
to  the  general  principles  of  this  court;  they  fall  under  the 
character  and  description  of  the  last  class  of  cases;  that  is, 
of  ships  constantly  and  exclusively  employed  in  the  ene- 
my's trade."  And  he  added:  " It  is  a  further  satisfaction 
to  me  in  giving  this  judgment  to  observe  that  the  facts  also 
bear  strong  marks  of  a  false  and  fraudulent  transaction. 

Grounds  for  the  Both  the  capture  and  condemnation  were  within  a  year 
after  the  order  of  the  English  government  of  January  ~2±, 
1798,  instructing  the  commanders  of  its  ships  to  seize 
French  and  Dutch  fishing  vessels,  and  before  any  revoca- 
tion of  that  order.  Lord  Stowell's  judgment  shows 
that  his  decision  was  based  upon  the  order  of  1798,  as  well 
as  upon  strong  evidence  of  fraud.  Nothing  more  was 
adjudged  in  the  case. 

Examinationof  But  some  expressions  in  his  opinion  have  been  given  so 
fn E^stoweiS  much  weight  by  English  writers,  that  it  may  be  well  to 
examine  them  particularly.  The  opinion  begins  by  admit- 
ting the  known  custom  in  former  wars  not  to  capture  such 
vessels — adding,  however,  "but  this  was  a  rule  of  comity 
only,  and  not  of  legal  decision."  Assuming  the  phrase 
"legal  decision"  to  have  been  there  used,  in  the  sense  in 
which  courts  are  accustomed  to  use  it,  as  equivalent  to 
"judicial  decision,"  it  is  true  that,  so  far  as  appears,  there 
had  been  no  such  decision  on  the  point  in  England.  The 
word  "comity"  was  apparently  used  by  Lord  Stowell  as 


89 

synonymous  with  courtesy  or  good  will.  But  the  period 
of  a  hundred  years  which  has  since  elapsed  is  amply  suffi- 
cient to  have  enabled  what  originally  may  have  rested  in 
custom  or  comity,  courtesy  or  concession,  to  grow,  by  the 
general  assent  of  civilized  nations,  into  a  settled  rule  of 
international  law.  As  well  said  by  Sir  James  Mackintosh: 
"In  the  present  century  a  slow  and  silent,  but  very  sub- 
stantial mitigation  has  taken  place  in  the  practice  of  war; 
and  in  proportion  as  that  mitigated  practice  has  received 
the  sanction  of  time,  it  is  raised  from  the  rank  of  mere 
usage,  and  becomes  part  of  the  law  of  nations."  Discourse 
on  the  Law  of  Nations,  38;  1  Miscellaneous  Works,  360. 

The  French  prize  tribunals,  both  before  and  after  Lord 
Stowell's  decision,  took  a  wholly  different  view  of  the  gen-  0"estt^j1  »eneral 
eral  question.  In  1780,  as  already  mentioned,  an  order  in 
council  of  Louis  XVI  had  declared  illegal  the  capture  by 
a  French  cruiser  of  The  John  and  Sarah,  an  English  ves- 
sel, coming  from  Holland,  laden  with  fresh  fish.  And  on 
May  17, 1801,  where  a  Portuguese  fishing  vessel,  with  her 
cargo  of  fish,  having  no  more  crew  than  was  needed  for 
her  management,  and  for  serving  the  nets,  on  a  trip  of 
several  days,  had  been  captured  in  April,  1801,  by  a 
French  cruiser,  three  leagues  off  the  coast  of  Portugal,  the 
Council  of  Prizes  held  that  the  capture  was  contrary  to 
"the  principles  of  humanity,  and  the  maxims  of  inter- 
national law,''  and  decreed  that  the  vessel,  with  the  fish 
on  board,  or  the  net  proceeds  of  any  that  had  been  sold, 
should  be  restored  to  her  master.  La  Nostra  Segnora  de 
In  n<(l<id,  25  Merlin,  Jurisprudence,  Prise  Maritime, 
§  3,  art.  1,  3;  S.  C.  1  Pistoye  et  Duverdy,  Prises  Mari- 
times,  331;  2  De  Cussy,  Droit  Maritime,  166. 

The  English  Government,  soon  afterwards,  more  than    Exemption 

,.  .  .,  .       ,  again  established 

once  unqualifiedly  prohibited  the  molestation  of  nshinerb>'Britishorders 

-.    J  .  &  in   council,  1806 

vessels  employed  in  catching  and  bringing  to  market  fresh  andisio. 
fish.  On  May  23,  1806,  it  was  "ordered  in  council,  that 
all  fishing  vessels  under  Prussian  and  other  colors,  and 
engaged  for  the  purpose  of  catching  fish  and  conveying 
them  fresh  to  market,  with  their  crews,  cargoes  and  stores, 
shall  not  be  molested  on  their  fishing  voyages  and  bring- 
ing the  same  to  market;  and  that  no  fishing  vessels  of  this 
description  shall  hereafter  be  molested.  And  the  Right 
Honorable  the  Lords  Commissioners  of  His  Majesty's 
Treasury,  the  Lords  Commissioners  of  the  Admiralty  and 
the  Judge  of  the  High  Court  of  Admiralty  are  to  give  the 
necessary  directions  herein  as  to  them  may  respectively 


90 

appertain."  5  C.  Rob.  408.  Again,  in  the  order  in  coun- 
cil of  May  2,  1810,  which  directed  that  "all  vessels  which 
shall  have  cleared  out  from  any  port  so  far  under  tne  con- 
trol of  France  or  her  allies  as  that  British  vessel:,  may 
not  freely  trade  thereat,  and  which  are  emplo}Ted  in  the 
whale  fishery,  or  other  fishery  of  any  description,  save  as 
hereinafter  excepted,  and  are  returning  or  destined  to 
return  either  to  the  port  from  whence  they  cleared,  or  to 
any  other  port  or  place  at  which  the  British  flag  ma}^  not 
freely  trade,  shall  be  captured,  and  condemned  together 
with  their  stores  and  cargoes,  as  prize  to  the  captors," 
there  were  excepted  "vessels  employed  in  catching  and 
conveying  fish  fresh  to  market,  such  vessels  not  being 
fitted  or  provided  for  the  curing  of  fish."  Edw.  Adm. 
appx.  L. 

wheaton'sview  Wheaton,  in  his  Digest  of  the  Law  of  Maritime  Cap- 
tures and  Prizes,  published  in  1815,  wrote:  "It  has  been 
usual  in  maritime  wars  to  exempt  from  capture  fishing- 
boats  and  their  cargoes,  both  from  views  of  mutual  accom- 
modation between  neighboring  countries,  and  from  ten- 
derness to  a  poor  and  industrious  order  of  people.  This 
custom,,  so  .honorable  to  the  humanity  of  civilized  nations, 
has  fallen  into  disuse;  and  it  is  remarkable  that  France 
and  England  mutually  reproach  each  other  with  that 
breach  of  good  faith  which  has  finally  abolished  it." 
Wheaton  on  Captures,  C.  2,  §  18. 

This  statement  clearly  exhibits  Wheaton's  opinion  that 
the  custom  had  been  a  general  one,  as  well  as  that  it  ought 
to  remain  so.  His  assumption  that  it  had  been  abolished 
by  the  differences  between  France  and  England  at  the 
close  of  the  last  century  was  hardly  justified  by  the  state  of 
things  when  he  wrote,  and  has  not  since  been  borne  out. 

Exemption  in     During  the  wars  of  the  French  Empire,  as  both  French 

the  wars  of  the  r        ' 

French  Empire  ancj  English  writers  agree,  the  coast  fisheries  were  left  in 

and  in  the  Mex- 

icanwar.  peace.  2  Ortolan,  54;  De  Boeck,  §  193;  Hall,  §  148.  De 
Boeck  quaintly  and  truly  adds,  "and  the  incidents  of  1800 
and  of  1801  had  no  morrow — n'eurent  pas  de  lendema'i  n." 
In  the  war  with  Mexico  in  1846,  the1  United  States  rec- 
ognized the  exemption  of  coast  fishing  boats  from  capture. 
In  proof  of  this,  counsel  have  referred  to  records  of  the 
Navy  Department,  which  this  court  is  clearly  authorized 
to  consult  upon  such  a  question.  Jones  v.  United  States, 
137  U.  S.  202;  Underbill  v.  Hernandez,  168  U.  S.  250, 
253. 

By  those  records  it  appears  that  Commodore  Conner, 


91 

commanding  the  Home  Squadron  blockading  the  east  coast 
of  Mexico,  on  May  14,  1846,  wrote  a  letter  from  the  ship 
Cumberland,  off  Brazos  Santiago,  near  the  southern  point 
of  Texas,  to  Mr.  Bancroft,  the  Secretary  of  the  Navy, 
enclosing  a  copy  of  the  commodore's  "instructions  to  the 
commanders  of  the  vessels  of  the  Home  Squadron,  show- 
ing the  principles  to  be  observed  in  the  blockade  of  the 
Mexican  ports,"  one  of  which  was  that  "Mexican  boats 
engaged  in  fishing  on  any  part  of  the  coast  will  be  allowed 
to  pursue  their  labors  unmolested;"  and  that  on  June  10, 
1846,  those  instructions  were  approved  by  the  Navy  De- 
partment, of  which  Mr.  Bancroft  was  still  the  head,  and 
continued  to  be  until  he  was  appointed  minister  to  Eng- 
land in  September  following.  Although  Commodore 
Conner's  instructions  and  the  Department's  approval 
thereof  do  not  appear  in  any  contemporary  publication 
of  the  Government,  they  evidently  became  generally 
known  at  the  time,  or  soon  after;  for  it  is  stated  in  several 
treatises  on  international  law  (beginning  with  Ortolan's 
second  edition,  published  in  1853)  that  the  United  States 
in  the  Mexican  War  permitted  the  coast  fishermen  of  the 
enemy  to  continue  the  free  exercise  of  their  industry.  2 
Ortolan,  (2d  ed.)  49  note;  (4th  ed.)  55;  4  Calvo,  (5th  ed.) 
§  2372;  De  Boeck,  §  194;  Hall,  (4th  ed.)  sec.  148. 

As  qualif  ving  the  effect  of  those  statements,  the  counsel    commodore 

n  ./       o  Stockton's  proc- 

f or  the  United  States  relied  on  a  proclamation  of  Commo-  lamation  appar- 

1          n  ^  ently  not  favor- 

dore  Stockton,  commanding  the  Pacific  Squadron,  dated  ing  exemption. 
August  20,  1846,  directing  officers  under  his  command  to 
proceed  immediately  to  blockade  the  ports  of  Mazatlan 
and  San  Bias  on  the  west  coast  of  Mexico,  and  saying  to 
them,  "All  neutral  vessels  that  you  may  find  there  }7ou 
will  allow  twenty  daj7s  to  depart;  and  you  will  make  the 
blockade  absolute  against  all  vessels,  except  armed  vessels 
of  neutral  nations.  You  will  capture  all  vessels  under  the 
Mexican  flag  that  you  may  be  able  to  take."  Navy  Report 
of  1846,  pp.  673,  674.  But  there  is  nothing  to  show  that 
Commodore  Stockton  intended,  or  that  the  Government 
approved,  the  capture  of  coast  fishing  vessels. 

On  the  contrarv,  General  Halleck,  in  the  preface  to  his,,  Haiieck  was 

•  '  Stockton's  ad- 

Work  on  International  Law  or  Rules  Regulating  the  Inter- 

course  of  States  in  Peace  and  War,  published  in  1861, 
says  that  he  began  that  work,  during  the  war  between 
the  United  States  and  Mexico,  %' while  serving  on  the  staff 
of  the  commander  of  the  Pacific  Squadron''  and  "often 
required  to  give  opinions  on  questions  of  international 


92 

law  growing  out  of  the  operations  of  the  war."  Had  the 
practice  of  the  blockading  squadron  on  the  west  coast  of 
Mexico  during  that  war,  in  regard  to  fishing  vessels,  dif- 
fered from  that  approved  by  the  Navy  Department  on  the 
east  coast,  General  Halleck  could  hardly  have  failed  to 
mention  it,  when  stating  the  prevailing  doctrine  upon  the 
subject  as  follows: 

temationai  Law  "  Fishing  boats  have  also,  as  a  general  rule,  been 
on  the  subject,  exempted  from  the  effects  of  hostilities.  As  earty  as 
1521,  while  war  was  raging  between  Charles  V  and  Fran- 
cis, ambassadors  from  these  two  sovereigns  met  at  Calais, 
then  English,  and  agreed  that,  whereas  the  herring  fishery 
was  about  to  commence,  the  subjects  of  both  belligerents, 
engaged  in  this  pursuit,  should  be  safe  and  unmolested  by 
the  other  party,  and  should  have  leavre  to  fish  as  in  time 
of  peace.  In  the  war  of  1800,  the  British  and  French 
governments  issued  formal  instructions  exempting  the 
fishing  boats  of  each  other's  subjects  from  seizure.  This 
order  was  subsequently  rescinded  by  the  British  govern- 
ment, on  the  alleged  ground  that  some  French  fishing 
boats  were  equipped  as  gunboats,  and  that  some  French 
fishermen,  who  had  been  prisoners  in  England,  had  vio- 
lated their  parole  not  to  serve,  and  had  gone  to  join  the 
French  fleet  at  Brest.  Such  excuses  were  evidently  mere 
pretexts,  and,  after  some  angry  discussions  had  taken 
place  on  the  subject,  the  British  restriction  was  with- 
drawn, and  the  freedom  of  fishing  was  again  allowed  on 
both  sides.  French  writers  consider  this  exemption  as  an 
established  principle  of  the  modern  law  of  war,  and  it  has 
been  so  recognized  in  the  French  courts,  which  have 
restored  such  vessels  when  captured  by  French  cruisers." 
Halleck,  (1st  ed.)  c.  20,  §  23. 

That  edition  was  the  onl}T  one  sent  out  under  the  author's 
own  auspices,  except  an  abridgment,  entitled  Elements  of 
International  Law  and  the  Law  of  War,  which  he  pub- 
lished in  1866,  as  he  said  in  the  preface,  to  supply  a  suit- 
able text-book  for  instruction  upon  the  subject,  "  not  Only  in 
our  colleges,  but  also  in  our  two  great  national  schools — the 
Militar}7  and  Naval  Academies."  In  that  abridgment,  the 
statement  as  to  fishing  boats  was  condensed,  as  follows: 
"  Fishing  boats  have  also,  as  a  general  rule,  been  exempted 
from  the  effects  of  hostilities.  French  writers  consider 
this  exemption  as  an  established  principle  of  the  modern 
law  of  war,  and  it  has  been  so  recognized  in  the  French 


93 

courts,  which  have  restored  such  vessels  when  captured 
by  French  cruisers."  Halleck's  Elements,  c.  20,  §  21. 

In  the  treaty  of  peace  between  the  United  States  and  Treatyofi&is. 
Mexico  in  1848  were  inserted  the  very  words  of  the  earlier 
treaties  with  Prussia,  already  quoted,  forbidding  the  hos- 
tile molestation  or  seizure  in  time  of  war  of  the  persons, 
occupations,  houses  or  goods  of  fishermen.  9  Stat.  939, 
940. 

Wharton's  Digest  of  the  International  Law  of  the  United    wharton's  DI- 

43  gest. 

States,  published  by  authority  of  Congress  in  1886  and 
1887,  embodies  General  Halleck's  fuller  statement,  above 
quoted,  and  contains  nothing  else  upon  the  subject.  3 
Whart.  Int.  Law  Dig.  §  345,  p.  315;  2  Halleck,  (Eng. 
eds.  1873  and  1878)  p.  151. 


France,  in  the  Crimean  War  in  1854,  and  in  her  wars    Act  ion   of 

'  France,  1854  ,1859, 

with  Austria  in  1859  and  with  Germany  in  1870,  b}-  gen-  and  mo. 
eral  orders,  forbade  her  cruisers  to  trouble  the  coast 
fisheries,  or  to  seize  any  vessel  or  boat  engaged  therein, 
unless  naval  or  military  operations  should  make  it  neces- 
sary. Calvo,  §  2372;  Hall,  §  148;  2  Ortolan,  (4th  ed.)  449; 
10  Revue  de  Droit  International,  (1878)  399. 

Calvo  says  that  in  the  Crimean  War,  "notwithstanding  .England's  ac- 

J  &  tion  in  the  Cri- 

her  alliance  with  France  and  Italy,  England  did  not  follow  mean  war. 
the  same  line  of  conduct,  and  her  cruisers  in  the  Sea  of 
Azof  destroyed  the  fisheries,  nets,  fishing  implements,  pro- 
visions, boats,  and  even  the  cabins,  of  the  inhabitants  of 
the  coast."  Calvo,  §  2372.  And  a  Russian  writer  on 
Prize  Law  remarks  that  those  depredations,  "having 
brought  ruin  on  poor  fishermen  and  inoffensive  traders, 
could  not  but  leave  a  painful  impression  on  the  minds  of 
the  population,  without  impairing  in  the  least  the  resources 
of  the  Russian  Government."  Katchenovsk}7,  (Pratt's 
ed.)  148.  But  the  contemporaneous  reports  of  the  Eng- 
lish naval  officers  put  a  different  face  on  the  matter,  by 
stating  that  the  destruction  in  question  was  part  of  a  mili- 
tary measure,  conducted  with  the  cooperation  of  the  French 
ships,  and  pursuant  to  instructions  of  the  English  admiral 
"to  clear  the  seaboard  of  all  fish  stores,  all  fisheries  and 
mills,  on  a  scale  beyond  the  wants  of  the  neighboring 
population,  and  indeed  of  all  things  destined  to  contribute 
to  the  maintenance  of  the  enemy's  army  in  the  Crimea;" 
and  that  the  property  destroyed  consisted  of  large  fishing 
establishments  and  storehouses  of  the  Russian  Govern- 
ment, numbers  of  heavy  launches,  and  enormous  quantities 
of  nets  and  gear,  salted  fish,  corn  and  other  provisions, 


94 

intended  for  the  supply  of  the  Russian  army.     United 
Service  Journal  of  1855,  pt.  3,  pp.  108-112. 
NO  denial  of     Since  the  English  orders  in  council  of  1806  and  1810, 

exemption  since  j    °       »  j-^ci-  i  i    • 

1806.  before  quoted,  in  favor  of  fishing  vessels  employed  in 

catching  and  bringing  to  market  fresh  fish,  no  instance  has 
been  found  in  which  the  exemption  from  capture  of  private 
coast  fishing  vessels,  honestly  pursuing  their  peaceful 
industry,  has  been  denied  by  England  or  by  any  other 

japan's  action  nation.  And  the  Empire  of  Japan,  (the  last  State  admitted 
into  the  rank  of  civilized  nations,)  by  an  ordinance  pro- 
mulgated at  the  beginning  of  its  war  with  China  in  August, 
1894,  established  prize  courts,  and  ordained  that  "the 
following  enemy's  vessels  are  exempt  from  detention  "- 
including  in  the  exemption  "boats  engaged  in  coast  fish- 
eries," as  well  as  "ships  engaged  exclusively  on  a  voyage 
of  scientific  discover}",  philanthropy  or  religious  mission." 
Takahashi,  International  Law,  11,  178. 

international      International  law  is  part  of  our  law,  and  must  be  ascer- 

unued  States  tained  and  administered  by  the  courts  of  justice  of  appro- 
law;  how  ascer-       •-••!•-•  £.  .•  £    •    •>.  j  j- 

tamed  and  ad-  priate  lurisdiction,  as  often  as  questions  or  right  depending 

ministered.  '  .  L     ,     .  °  ±  6 

upon  it  are  duly  presented  for  their  determination,  lor 
this  purpose,  where  there  is  no  treaty,  and  no  controlling 
executive  or  legislative  act  or  judicial  decision,  resort  must 
be  had  to  the  customs  and  usages  of  civilized  nations;  and, 
as  evidence  to  these,  to  the  works  of  jurists  and  commen- 
tators, who  by  years  of  labor,  research  and  experience, 
have  made  themselves  peculiarly  well  acquainted  with  the 
subjects  of  which  they  treat.  Such  works  are  resorted  to 
by  judicial  tribunals,  not  for  the  speculations  of  their 
authors  concerning  what  the  law  ought  to  be,  but  for 
trustworthy  evidence  of  what  the  "law  really  is.  Hilton  v. 
Guyot,  159  U.  S.  113,  163,  164,  214,  215. 

wheaton.  Wheaton  places,  among  the  principal  sources  of  inter- 

national law,  "Text-writers  of  authority,  showing  what  is 
the  approved  usage  of  nations,  or  the  general  opinion 
respecting  their  mutual  conduct,  with  the  definitions  and 
modifications  introduced  by  general  consent."  As  to  these 
he  forcibly  observes:  "Without  wishing  to  exaggerate  the 
importance  of  these  writers,  or  to  substitute,  in  any  case, 
their  authority  for  the  principles  of  reason,  it  ma\T  be 
affirmed  that  they  are  generally  impartial  in  their  judg- 
ment. They  are  witnesses  of  the  sentiments  and  usages 
of  civilized  nations,  and  the  weight  of  their  testimony 
increases  every  time  that  their  authority  is  invoked  by 
statesmen,  and  every  }*ear  that  passes  without  the  rules 


95 

laid  down  in  their  works  being  impugned  by  the  avowal 
of  contrary  principles."  Wheaton's  International  Law, 
(8th  ed.)  §  15. 

Chancellor  Kent  says:  "In  the  absence  of  higher  and  Kent 
more  authoritative  sanctions,  the  ordinances  of  foreign 
States,  the  opinions  of  eminent  statesmen,  and  the  writ- 
ings of  distinguished  jurists,  are  regarded  as  of  great  con- 
sideration on  questions  not  settled  by  conventional  law. 
In  cases  where  the  principal  jurists  agree,  the  presumption 
will  be  very  great  in  favor  of  the  solidity  of  their  maxims; 
and  no  civilized  nation,  that  does  not  arrogantly  set  all 
ordinary  law  and  justice  at  defiance,  will  venture  to  dis- 
regard the  uniform  sense  of  the  established  writers  on 
international  law."  1  Kent  Com.  18. 

It  will  be  convenient,  in  the  first  place,  to  refer  to  some 
leading  French  treatises  on  international  law,  which  deal 
with  the  question  now  before  us,  not  as  one  of  the  law  of 
France  only,  but  as  one  determined  by  the  general  con- 
sent of  civilized  nations. 

"Enemy  ships,"  say  Pistoye  and  Duverdy,  in  their D^!esr^°/e  and 
Treatise  on  Maritime  Prizes,  published  in  1855,  "are 
good  prize.  Not  all,  however;  for  it  results  from  the 
unanimous  accord  of  the  maritime  powers  that  an  excep- 
tion should  be  made  in  favor  of  coast  fishermen.  Such 
fishermen  are  respected  by  the  enemy,  so  long  as  they 
devote  themselves  exclusively  to  fishing."  1  Pistoye  et 
Duverdy,  tit.  6,  c.  1,  p.  314. 

De  Cussy,  in  his  work  on  the  Phases  and  Leading  Cases 
of  the  Maritime  Law  of  Nations — Phases  et  Causes  Cele- 
bres  du  Droit  Maritime  des  Nations — published  in  1856, 
affirms  in  the  clearest  language  the  exemption  from  cap- 
ture of  fishing  boats,  saying,  in  lib.  1,  tit.  3,  §  36,  that 
"  in  time  of  war  the  freedom  of  fishing  is  respected  by 
belligerents;  fishing  boats  are  considered  as  neutral;  in 
law,  as  in  principle,  they  are  not  subject  either  to  capture 
or  to  confiscation;"  and  that  in  lib.  2,  c.  20,  he  will  state 
"several  facts  and  several  decisions  which  prove  that 
the  perfect  freedom  and  neutrality  of  fishing  boats  are 
not  illusory."  1  De  Cussy,  p.  291.  And  in  the  chapter 
referred  to,  entitled  De  la  Liberte  et  de  la  Neutralite  Par- 
fn!f<  <l<  hi  /Vr/,,.  besides  references  to  the  edicts  and 
decisions  in  France  during  the  French  Revolution,  is  thU 
general  statement:  "If  one  consulted  only  positive  inter- 
national law"— Jf  <//•<></  'Ax  <j>  UN  j>n*!tif- -(by  which  is  evi- 
dently  meant  international  law  expressed  in  treaties, 


96 

decrees  or  other  public  acts,  as  distinguished  from  what 
maybe  implied  from  custom  or  usage,)  "fishing  boats 
would  be  subject,  like  all  other  trading  vessels,  to  the  law 
of  prize;  a  sort  of  tacit  agreement  among  all  European 
nations  frees  them  from  it,  and  several  official  declarations 
have  confirmed  this  privilege  in  favor  of  '  a  class  of  men 
whose  hard  and  ill  rewarded  labor,  commonly  performed 
by  feeble  and  aged  hands,  is  so  foreign  to  the  operations 
of  war.' "  2  De  Cussy,  164,  165. 

Ortolan.  Ortolan,  in  the  fourth  edition  of  his  Regies  Internation- 

ales et  Diplomatic  de  la  Mer,  published  in  1864,  after 
stating  the  general  rule  that  the  vessels  and  cargoes  of 
subjects  of  the  enemy  are  lawful  prize,  says:  "Neverthe- 
less, custom  admits  an  exception  in  favor  of  boats  engaged 
in  the  coast  fisher}-;  these  boats,  as  well  as  their  crews, 
are  free  from  capture  and  exempt  from  all  hostilities. 
The  coast  fishing  industry  is,  in  truth,  wholly  pacific,  and 
of  much  less  importance,  in  regard  to  the  national  wealth 
that  it  may  produce,  than  maritime  commerce  or  the  great 
fisheries.  Peaceful  and  wholly  inoffensive,  those  who 
carry  it  on,  among  whom  women  are  often  seen,  ma}T  be 
called  the  harvesters  of  the  territorial  seas,  since  they  con- 
fine themselves  to  gathering  in  the  products  thereof;  they 
are  for  the  most  part  poor  families  who  seek  in  this  call- 
ing hardly  more  than  the  means  of  gaining  their  liveli- 
hood." 2  Ortolan,  51.  Again,  after  observing  that  there 
are  veiy  few  solemn  public  treaties  which  make  mention 
of  the  immunity  of  fishing  boats  in  time  of  war,  he  says: 
"  From  another  point  of  view,  the  custom  which  sanctions 
this  immunity  is  not  so  general  that  it  can  be  considered 
as  making  an  absolute  international  rule;  but  it  has  been 
so  often  put  in  practice,  and,  besides,  it  accords  so  well 
with  the  rule  in  use,  in  wars  on  land,  in  regard  to  peasants 
and  husbandmen,  to  whom  coast  fishermen  may  be  lik- 
ened, that  it  will  doubtless  continue  to  be  followed  in 
maritime  wars  to  come."  2  Ortolan,  55. 

Caivo.  No  international  jurist  of  the  present  day  has  a  wider  or 

more  deserved  reputation  than  Calvo,  who,  though  writing 
in  French,  is  a  citizen  of  the  Argentine  Republic,  employed 
in  its  diplomatic  service  abroad.  In  the  fifth  edition  of 
his  great  work  on  international  law,  published  in  1896,  he 
observes,  in  §  2366,  that  the  international  authority  of 
decisions  in  particular  cases  by  the  prize  courts  of  France, 
of  England,  and  of  the  United  States,  is  lessened  by  the 
fact  that  the  principles  on  which  they  are  based  are  largely 


9.7 

derived  from  the  internal  legislation  of  each  chantry;  arid 
yet  the  peculiar  character  of  maritime  wars,  with  other 
considerations,  gives  to  prize  jurisprudence  a  force  and 
importance  reaching  bej^ond  the  limits  of  the  country  in 
which  it  has  prevailed.  He  therefore  proposes  here  to 
group  together  a  number  of  particular  cases  proper  to 
serve  as  precedents  for  the  solution  of  grave  questions  of 
maritime  law  in  regard  to  the  capture  of  private  property 
as  prize  of  war.  Immediatel}T,  in  £  2367,  he  goes  on  to 
siy:  ''Notwithstanding  the  hardships  to  which  maritime 
wars  subject  private  property,  notwithstanding  the  extent 
of  the  recognized  rights  of  belligerents,  there  are  generally 
exempted,  from  seizure  and  capture,  fishing  vessels."  In 
the  next  section  he  adds:  "This  exception  is  perfectly 
justiciable —  Cette  exception  est  parfaiteinent  justiciable"  - 
that  is  to  say,  belonging  to  judicial  jurisdiction  or  cogni- 
zance. Littre,  Diet.  roc.  Justiciable;  Hans  v.  Louisiana, 
134  V.  S.  1,  15.  Calvo  then  quotes  Ortolan's  description, 
above  cited,  of  the  nature  of  the  coast  fishing  industry; 
and  proceeds  to  refer,  in  detail,  to  some  of  the  French 
precedents,  to  the  acts  of  the  French  and  English  govern- 
ments in  the  times  of  Louis  XVI  and  of  the  French  Revo.- 
lution,  to  the  position  of  the  United  States  in  the  war  with 
Mexico,  and  of  France  in  later  wars,  and  to  the  action  of 
British  cruisers  in  the  Crimean  war.  And  he  concludes 
his  discussion  of  the  subject,  in  §  2373,  by  affirming  the 
exemption  of  the  coast  fishery,  and  pointing  out  the  dis- 
tinction in  this  regard  between  the  coast  fishery  and  what 
he  calls  the  great  fishery,  for  cod,  whales  or  seals,  as 
follows:  "The  privilege  of  exemption  from  capture,  which 
is  generally  acquired  by  fishing  vessels  plying  their  indus- 
try near  the  coasts,  is  not  extended  in  any  country  to  ships 
employed  on  the  high  sea  in  what  is  called  the  great  fishery, 
such  as  that  for  the  cod,  for  the  whale  or  the  sperm  whale, 
or  for  the  seal  or  sea  calf.  These  ships  are,  in  effect,  con- 
sidered as  devoted  to  operations  which  are  at  once  com- 
mercial and  industrial — ('/.•<  /m  ><//•>•><  xont  m  <ft',f  consider^ 
coininc  <i<loiui<:x  a  des  operations  a  la  fo<x  commercial**  <t 
inline r'x'lles"  The  distinction  is  generally  recognized. 
-2  ( >rtolan,  54;  De  Boeck,  S  196;  Hall,  S  148.  See  also  The 
Sux<i,  2  C.  Rob.  251;  The  Johan,  Edw.  Adm.  275,  and 
appx.  L. 

The  modern  German  books  on  international  law,  cited 
by  the  counsel  for  the  appellants,  treat  the  custom.  l>\ 
which  the  vessels  and  implements  of  coast  fishermen  are 


98 

exempt  from  seizure  and  capture,  as  well  established  by 
the  practice  of  nations.     Heffter,   §  137;  2  Kaltenborn, 
§  237,  p.  480;  Bluntschli,  §  667;  Perel,  §  37,  p.  217. 
DeBoeck.  De  Boeck,  in  his  work  on   Enemy  Private  Property 

under  Enemy  Flag — de  la  Propriete  Privee  Ennemie  sous 
Pavilion  Ennemi— published  in  1882,  and  the  only  conti- 
nental treatise  cited  by  the  counsel  for  the  United  States, 
says  in  §  191:  "A  usage  very  ancient,  if  not  universal, 
withdraws  from  the  right  of  capture  enemy  vessels  engaged 
in  the  coast  fishery.  The  reason  of  this  exception  is  evi- 
dent; it  would  have  been  too  hard  to  snatch  from  poor 
fishermen  the  means  of  earning  their  bread."  "The 
exemption  includes  the  boats,  the  fishing  implements  and 
the  cargo  of  fish."  Again,  in  §  195:  "  It  is  to  be  observed 
that  very  few  treaties  sanction  in  due  form  this  immunity 
of  the  coast  fishery."  "There  is,  then,  only  a  custom. 
But  what  is  its  character?  Is  it  so  fixed  and  general  that 
it  can  be  raised  to  the  rank  of  a  positive  and  formal  rule 
of  international  law?"  After  discussing  the  statements 
of  other  writers,  he  approves  the  opinion  of  Ortolan  (as 
expressed  in  the  last  sentence  above  quoted  from  his 
work)  and  says  that,  at  bottom,  it  differs  by  a  shade  only 
from  that  formulated  by  Calvo  and  by  some  of  the  Ger- 
man jurists,  and  that  "  it  is  more  exact,  without  ignoring 
the  imperative  character  of  the  humane  rule  in  question— 
elle  est  plus  exacte,  sans  meconnattre  le  caractere  imperatif 
d#  la  regie  cPhumanite  dont  il  Jagit"  And  in  §  196,  he 
defines  the  limits  of  the  rule  as  follows:  "  But  the  immu- 
nity of  the  coast  fishery  must  be  limited  by  the  reasons 
that  justify  it.  The  reasons  of  humanity  and  of  harmless- 
ness — les  raisons  d*  kumanite  et  d'innocuite — which  militate 
in  its  favor  do  not  exist  in  the  great  fishery,  such  as  the 
cod  fishery;  ships  engaged  in  that  fishery  devote  them- 
selves to  truly  commercial  operations,  which  employ  a 
large  number  of  seamen.  And  these  same  reasons  cease 
to  be  applicable  to  fishing  vessels  employed  for  a  warlike 
purpose,  to  those  which  conceal  arms,  or  which  exchange 
signals  of  intelligence  with  ships  of  war;  but  only  those 
taken  in  the  fact  can  be  rigorously  treated;  to  allow  seiz- 
ure by  way  of  prevention  would  open  the  door  to  every 
abuse,  and  would  be  equivalent  to  a  suppression  of  the 
immunity." 

Two  recent  English  text-writers,  cited  at  the  bar,  (influ- 
enced by  what  Lord  Stowell  said  a  century  since,)  hesitate 
to  recognize  that  the  exemption  of  coast  fishing  vessels 


99 

from  capture  has  now  become  a  settled  rule  of  interna- 
tional law.  Yet  they  both  admit  there  is  little  real  differ- 
ence in  the  views,  or  in  the  practice,  of  England  and  of 
other  maritime  nations;  and  that  no  civilized  nation  at  the 
present  day  would  molest  coast  fishing  vessels,  so  long  as 
they  were  peaceably  pursuing  their  calling,  and  there  was 
no  danger  that  they  or  their  crews  might  be  of  military 
use  to  the  enemy.  Hall,  in  §  148  of  the  fourth  edition  of  Hail, 
his  Treatise  on  International  Law,  after  briefly  sketching 
the  history  of  the  positions  occupied  by  France  and  Eng- 
land at  different  periods,  and  by  the  United  States  in  the 
Mexican  War,  goes  on  to  say:  "In  the  foregoing  facts 
there  is  nothing  to  show  that  much  real  difference  has 
existed  in  the  practice  of  the  maritime  countries.  Eng- 
land does  not  seem  to  have  been  unwilling  to  spare  fishing 
vessels  so  long  as  they  are  harmless,  and  it  does  not  appear 
that  any  State  has  accorded  them  immunity  under  circum- 
stances of  inconvenience  to  itself.  It  is  likely  that  all 
nations  would  now  refrain  from  molesting  them  as  a  gen- 
eral rule,  and  would  capture  them  so  soon  as  any  danger 
arose  that  they  or  their  crews  might  be  of  military  use  to 
the  enemy;  and  it  is  also  likely  that  it  is  impossible  to 
grant  them  a  more  distinct  exemption."  So  T.  J.  Law-  Lawrence, 
rence,  in  £  206  of  his  Principles  of  International  Law. 
says:  "The  difference  between  the  English  and  the 
French  view  is  more  apparent  than  real;  for  no  civilized 
belligerent  would  now  capture  the  boats  of  fishermen 
plying  their  avocation  peaceably  in  the  territorial  waters 
of  their  own  State:  and  no  jurist  would  seriously  argue 
that  their  immunity  must  be  respected  if  they  were  used 
for  warlike  purposes,  as  were  the  smacks  belonging  to  the 
northern  ports  of  France  when  Great  Britain  gave  the 
order  to  capture  them  in  1800." 

But  there  are  writers  of  various  maritime  countries,  not 
yet  cited,  too  important  to  be  passed  by  without  notice. 

Jan  Helenus  Ferguson,  Netherlands  Minister  to  China.  Ferguson, 
and  previously  in  the  naval  and  in  the  colonial  service  of 
his  country,  in  his  Manual  of  International  Law  for  the 
I'se  of  Navies,  Colonies  and  Consulates,  published  in  1882, 
writes:  "An  exception  to  the  usage  of  capturing  enemy's 
private  vessels  at  sea  is  the  coast  fishery."  *'  This  princi- 
ple of  immunity  from  capture  of  fishing  boats  is  generally 
adopted  by  all  maritime  powers,  and  in  actual  warfare 
they  are  universally  spared  so  long  as  they  remain  hann- 
lc--."  -J  Ferguson,  S  '21*2. 


100 

Attlmayr  Ferdinand  Attlmayr,  Captain  in  the  Austrian  Navy,  in 

his  Manual  for  Naval  Officers,  published  at  Vienna  in  1872 
under  the  auspices  of  Admiral  Tegetthoff,  says:  "  Regard- 
ing1 the  capture  of  enemy  property,  an  exception  must  be 
mentioned,  which  is  a  universal  custom.  Fishing  vessels 
which  belong  to  the  adjacent  coast,  and  whose  bushios 
}Tields  only  a  necessary  livelihood,  are,  from  considera- 
tions of  humanity,  universally  excluded  from  capture." 
1  Attlmayr,  61. 

<u-  xegriii.  Ignacio  de  Negrin,  First  Official  of  the  Spanish  Board 

of  Admiralty,  in  his  Elementary  Treatise  on  Maritime 
International  Law,  adopted  by  royal  order  as  a  text-book 
in  the  Naval  Schools  of  Spain,  and  published  at  Madrid  in 
1873,  concludes  his  chapter  "Of  the  lawfulness  of  prizes*' 
with  these  words:  "  It  remains  to  be  added  that  the  custom 
of  all  civilized  people  excludes  from  capture,  and  from  all 
kind  of  hostilit}',  the  fishing  vessels  of  the  enemy's  coasts, 
considering  this  industry  as  absolutely  inoffensive,  and 
deserving,  from  its  hardships  and  usefulness,  of  this 
favorable  exception.  It  has  been  thus  expressed  in  veiT 
many  international  conventions,  so  that  it  can  be  deemed 
an  incontestable  principle  of  law,  at  least  among  enlight- 
ened nations."  Negrin,  tit.  3,  c.  1,  >j  310. 

Testa.  Carlos  Testa,  Captain  in  the  Portuguese  Navy  and  Pro- 

fessor in  the  Naval  School  at  Lisbon,  in  his  work  on  Pub- 
lic International  Law,  published  in  French  at  Parisin  1886, 
when  discussing  the  general  right  of  capturing  enemy  ships, 
uays:  "Nevertheless,  in  this,  customary  law  establishes  an 
exception  of  immunity  in  favor  of  coast  fishing  vessels. 
Fishing  is  so  peaceful  an  industry,  and  is  generally  car- 
ried on  by  so  poor  and  so  hardworking  a  class  of  men,  that 
it  is  likened,  in  the  territorial  waters  of  the  enemy's  coun- 
try, to  the  class  of  husbandmen  who  gather  the  fruits  of 
the  earth  for  their  livelihood.  The  examples  and  practice1 
generally  followed  establish  this  humane  and  beneficent 
exception  as  an  international  rule,  and  this  rule  may  be  con- 
sidered as  adopted  by  customary  law  and  by  all  civilized 
nations."  Testa,  pt.  3,  c.  2,  in  18  Bibliotheque  Interna- 
tional et  Diplomatique,  pp.  152,  153. 

Fi(>r>-  No  less  clearly  and  decisively  speaks  the  distinguished 

Italian  jurist,  Pasquale  Fiore,  in  the  enlarged  edition  of 
his  exhaustive  work  on  Public  International  Law,  pub- 
lished at  Paris  in  1885-6,  saying:  "The  vessels  of  iisher 
men  have  been  generally  declared  exempt  from  confisca- 
tion, because  of  the  eminently  peaceful  object  of  their 


101 

humble  industry,  and  of  the  principles  of  equity  and 
humanity.  The  exemption  includes  the  vessel,  the  imple- 
ments of  fishing,  and  the  cargo  resulting  from  the  fisheiy. 
This  usage,  eminently  humane,  goes  back  to  very  ancient 
times;  and  although  the  immunit}'  of  fishery  along  the 
coasts  may  not  have  been  sanctioned  by  treaties,  yet  it  is 
considered  to-dajT  as  so  definitely  established,  that  the  in- 
violability of  vessels  devoted  to  that  fishery  is  proclaimed 
by  the  publicists  as  a  positive  rule  of  international  law, 
and  is  generally  respected  by  the  nations.  Consequently 
we  shall  lay  down  the  following  rule:  (a)  Vessels  belong- 
ing to  the  citizens  of  the  enemy  State,  and  devoted  to 
fishing  along  the  coasts,  cannot  be  subject  to  capture. 
(7>)  Such  vessels,  however,  will  lose  all  right  of  exemption, 
when  employed  for  a  warlike  purpose,  (c)  There  may, 
nevertheless,  be  subjected  to  capture  vessels  devoted  to 
the  great  fishery  in  the  ocean,  such  as  those  employed  in 
the  whale  fishery,  or  in  that  for  seals  or  sea  calves." 
3  Fiore,  §  1421.  ' 

This  review  of  the  precedents  and  authorities  on  the    Exemption  c  f 

coast  lishing  ves- 

sumect  appears  to  us  abundantlv  to  demonstrate  that  at**^  now  an  e<- 

J  -  ,..,.,  tablished  rule. 

the  present  day.  by  the  general  consent  or  the  civilized 
nations  of  the  world,  and  independently  of  &ny  express 
treaty  or  other  public  act,  it  is  an  established  rule  of  inter- 
national law,  founded  on  considerations  of  humanity  to  a 
poor  and  industrious  order  of  men,  and  of  the  mutual  con- 
venience of  belligerent  States,  that  coast  fishing  vessels, 
with  their  implements  and  supplies,  cargoes  and  crews, 
unarmed,  and  honestly  pursuing  their  peaceful  calling  of 
catching  and  bringing  in  fresh  fish,  are  exempt  from  cap- 
ture as  prize  of  war. 

The  exemption,  of  course,  does  not  applv  to  coast  fish-    RUR- voided  by 

,,  i        •  i?  i  j    f  IM  v.-arlike  employ  - 

ermen  or  their  vessels,  it  employed  for  a  warlike  purpose,  im-m;  does  not 

,  ".  i  .     ,,  , .  ,,      apply    to    great 

or  in  such  a  way  as  to  give  aid  or  information  to  toe  fisheries, 
enemy;  nor  when  military  or  naval  operations  create  a 
necessity  to  which  all  private  interests  must  give  away. 

Nor  has  the  exemption  been  extended  to  ships  or  vessels 
employed  on  the  high  sea  in  taking  whales  or  seals,  or  cod 
or  other  fish  which  are  not  brought  fresh  to  market,  but 
arc  suited  or  otherwise  cured  and  made  a  regular  article 
of  commerce. 

This  rule  of  international  law  is  one  which  prize  courts, 
administering  the  law  of  nations,  are  bound  to  take  judicial 
notice  of,  and  to  give  effect  to,  in  the  absence  of  an}'  treaty 


102 

or  other  public  act  of  their  own  government  in  relation  to 
the  matter. 

Calvo,  in  a  passage  already  quoted,  distinct!}'  affirms 
that  the  exemption  of  coast  fishing  vessels  from  capture  is 
perfectly  justiciable,  or.  in  other  words,  of  judicial  juris- 
diction or  cognizance.  Calvo,  §  2368.  Nor  are  judicial 
precedents  wanting  in  support  of  the  view  that  this  exemp- 
tion, or  a  somewhat  analogous  one,  should  be  recognized 
and  declared  by  a  prize  court. 

******* 

Attitude  of  the     The  position  taken   by  the  United  States  during  the 

United  States  m  ...  i        •   i 

Spanish  war.  recent  war  with  Spain  was  quite  in  accord  with  the  rule 
of  international  law,  now  generally  recognized  hy  civilized 
nations,  in  regard  to  coast  fishing  vessels. 

On  April  21,  1898,  the  Secretar}T  of  the  Navy  gave  in- 
structions to  Admiral  Sampson,  commanding  the  North 
Atlantic  Squadron,  to  "immediately  institute  a  blockade  of 
the  north  coast  of  Cuba,  extending  from  Cardenas  on  the 
east  to  Bahia  Honda  on  the  west."  Bureau  of  Navigation 
Report  of  1898,  appx.  175.  The  blockade  was  immedi- 
ately instituted  accordingly.  On  April  22,  the  President 
issued  a  proclamation,  declaring  that  the  United  States 
had  instituted  and  would  maintain  that  blockade,  "in  pur- 
suance of  the  laws  of  the  United  States,  and  the  law  of 
nations  applicable  to  such  cases."  30  Stat.  1769.  And 
by  the  act  of  Congress  of  April  25,  1898,  c.  189,  it  was 
declared  that  the  war  between  the  United  States  and 
Spain  existed  on  that  day,  and  had  existed  since  and  in- 
cluding April  21.  30  Stat.  364. 

On  April  26,  1898,  the  President  issued  another  procla- 
mation, which,  after  reciting  the  existence  of  the  war,  as 
declared  by  Congress,  contained  this  further  recital:  "It 
being  desirable  that  such  war  should  be  conducted  upon 
principles  in  harmony  with  the  present  views  of  nations 
and  sanctioned  by  their  recent  practice."  This  recital 
was  followed  by  specific  declarations  of  certain  rules  for 
the  conduct  of  the  war  by  sea,  making  no  mention  of 
fishing  vessels.  30  Stat.  1770.  But  the  proclamation 
clearly  manifests  the  general  policy  of  the  Government  to 
conduct  the  war  in  accordance  with  the  principles  of  inter- 
national law  sanctioned  .by  the  recent  practice  of  nations. 
Sampson's  dis-  On  April  28,  1898,  (after  the  capture  of  the  two  fishing 

patch     concern-  ,  ,  j»        \    »  j     £__i   o  j.    i  i 

ing  Cuban  fisher- vessels  now  in  question,)  Admiral  hampson  telegraphed 
.  to  the  Secretary  of  the  Nav}T  as  follows:  "I  find  that  a 


103 

large  number  of  fishing  schooners  are  attempting  to  get 
into  Havana  from  their  fishing  grounds  near  the  Florida 
reefs  and  coasts.  The}T  are  generally  manned  by  excellent  . 
seamen,  belonging  to  the  maritime  inscription  of  Spain,  who 
have  already  served  in  the  Spanish  navy,  and  who  are  lia- 
ble to  further  service.  As  these  trained  men  are  naval 
reserves,  have  a  semi-military  character,  and  would  be 
most  valuable  to  the  Spaniards  as  artillerymen,  either  afloat 
or  ashore,  I  recommend  that  the}r  should  be  detained  as 
prisoners  of  war,  and  that  I  should  be  authorized  to  de- 
liver them  to  the  commanding  officer  of  the  army  at  Key 
West."  To  that  communication  the  Secretary  of  the  Navy,  Answer  of  the 
on  April  30,  1898,  guardedly  answered:  "Spanish  fishing 
vessels  attempting  to  violate  blockade  are  subject,  with 
crew,  to  capture,  and  an}'  such  vessel  or  crew  considered 
likely  to  aid  enemy  may  be  detained.'1  Bureau  of  Navi- 
gation Report  of  1898,  appx.  178.  The  Admiral's  dis- 
patch assumed  that  he  was  not  authorized,  without  express 
order,  to  arrest  coast  fishermen  peaceably  pursuing  their 
calling;  and  the  necessary  implication  and  evident  intent 
of  the  response  of  the  Navy  Department  were  that  Span- 
ish coast  fishing  vessels  and  their  crews  should  not  be  in- 
terfered with,  so  long  as  they  neither  attempted  to  violate 
the  blockade,  nor  were  considered  likely  to  aid  the  enemy. 
The  Paquete  Habana,  as  the  record  shows,  was  a  fishing 
sloop'  of  25  tons  burden,  sailing  under  the  Spanish  flag, 
running  in  and  out  of  Havana,  and  regularly  engaged  in 
fishing  on  the  coast  of  Cuba.  Her  crew  consisted  of  but 
three  men,  including  the  master;  and,  according  to  a  com- 
mon usage  in  coast  fisheries,  had  no  interest  in  the  vessel, 
but  were  entitled  to  two  thirds  of  her  catch,  the  other  third 
belonging  to  her  Spanish  owner,  who,  as  well  as  the  crew, 
resided  in  Havana.  On  her  last  voyage,  she  sailed  from 
Havana  along  the  coast  of  Cuba,  about  two  hundred  miles, 
and  fished  for  twenty -five  days  off  the  cape-at  the  west  end 
of  the  island,  within  the  territorial  waters  of  Spain;  and 
was  going  back  to  Havana,  with  her  cargo  of  live  fish, 
when  she  was  captured  by  one  of  the  blockading  squadron, 
on  April  25,  1898.  She  had  no  arms  or  ammunition  on 
board;  she  had  no  knowledge  of  the  blockade,  or  even  of 
the  war,  until  she  was  stopped  by  a  blockading  vessel;  she 
made  no  attempt  to  run  the  blockade,  and  no  resistance  at 
the  time  of  the  capture;  nor  was  there  any  evidence  what- 
ever of  likelihood  that  she  or  her  crew  would  aid  the 
enemy. 


104 

In  the  case  of  the  Lola,  the  only  differences  in  the  facts 
were  that  she  was  a  schooner  of  35  tons  burden,  and  had  a 
crew  of  six  men,  including  the  master;  that  after  leaving 
Havana,  and  proceeding  some  two  hundred  miles  along  the 
coast  of  Cuba,  she  went  on,  about  a  hundred  miles  farther, 
to  the  coast  of  Yucatan,  and  there  fished  for  eight  days; 
and  that,  on  her  return,  when  near  Bahia  Honda,  on  the 
coast  of  Cuba,  she  was  captured,  with  her  cargo  of  live 
fish,  on  April  27, 1898.  These  differences  afford  no  ground 
for  distinguishing  the  two  cases. 

Each  vessel  was  of  a  moderate  size,  such  as  is  not  unusual 
in  coast  fishing  smacks,  and  was  regularly  engaged  in  fish- 
ing on  the  coast  of  Cuba.  The  crew  of  each  were  few  in 
number,  had  no  interest  in  the  vessel,  and  received,  in  re- 
turn for  their  toil  and  enterprise,  two  thirds  of  her  catch, 
the  other  third  going  to  her  owner  b}T  wajr  of  compensation 
for  her  use.  Each  vessel  went  out  from  Havana  to  her 
fishing  ground,  and  was  captured  when  returning  along 
the  coast  of  Cuba.  The  cargo  of  each  consisted  of  fresh 
iish,  caught  by  her  crew  from  the  sea,  and  kept  alive  on 
board.  Although  one  of  the  vessels  extended  her  fishing 
trip  across  the  Yucatan  Channel  and  fished  on  the  coast  of 
Yucatan,  we  can  not  doubt  that  each  was  engaged  in  the 
coast  fishery,  and  not  in  a  commercial  adventure,  wnthin 
the  rule  of  international  law. 

The  two  vessels  and  their  cargoes  were  condemned  by 
the  District  Court  as  prize  of  war;  the  vessels  were  sold 
under  its  decrees;  and  it  does  not  appear  what  became  of 
the  fresh  fish  of  which  their  cargoes  consisted. 

judgment.  Upon  the  facts  proved  in  either  case,  it  is  the  duty  of 

this  court,  sitting  as  the  highest  prize  court  of  the  United 
States,  and  administering  the  law  of  nations,  to  declare 
and  adjudge  that  the  capture  was  unlawful,  and  without 
probable  cause;  and  it  is  therefore,  in  each  case, 

Ordered,  that  the  decree  of  the  District  Court  be 
reversed,  and  the  proceeds  of  the  sale  of  the  vcx*>-/, 
together  with  the  proceeds  of  any  sale  of  her  cargo*  In* 
restored  to  the  claimant,  with  damages  and  costs. 

MR.  CHIEF  JUSTICE  FULLER,  with  whom  concurred 
MR.  JUSTICE  HARLAN  and  MR.  JUSTICE  McKENNA,  dis- 
senting. 


105 
CASE  OP  THE  ADULA. 

(Vol.  176,  United  States  Reports,  p.  361.    Decided  February  ->f>.  1900.) 

This  was  a  libel  in  prize  against  the  British  steamship  th|^™ent  of 
Adula,  then  under  charter  to  a  Spanish  subject,  which  was 
seized  June  29,  1898,  by  the  United  States  cruiser  Mar- 
blehead,  for  attempting  to  run  the  blockade  established  at 
Guantanamo  Bay  in  the  island  of  Cuba,  and  was  subse- 
quently sent  into  the  port  of  Savannah  for  adjudication. 

The  Adula,  a  vessel  of  372  tons,  was  built  at  Belfast  in 
1889,  for  her  owner,  the  Atlas  Steamship  Compan}r,  Lim- 
ited, a  British  corporation,  and  was  registered  In  the  name 
of  its  managing  director,  Sir  William  Bowers  Forwood. 
Prior  to  the  American-Spanish  war  she  was  engaged  in 
general  trade  between  Kingston  and  other  ports  on  the 
coast  of  Jamaica,  and  from  time  to  time  had  made  voy- 
ages to  Cuban  ports.  After  the  breaking  out  of  the  war 
the  steamer  was  chartered  by  various  persons  in  the  inter- 
vals of  its  regular  work,  for  voyages  to  Cuba. 

In  the  meantime,  however,  under  the  command  of  Rear 
Admiral  Sampson,  a  blockade  was  established  at  Santiago, 
where  the  Spanish  fleet  \&y  under  the  command  of  Admiral 
Cervera.  Upon  June  8,  a  blockade  of  Guantanamo  Ba}* 
was  also  established  by  order  of  Admiral  Sampson,  the 
blockading  squadron  being  under  the  conimand  of  Com- 
mander McCalla.  Both  of  these  blockades  were  main- 
tained during  the  war.  On  April  22,  a  blockade  of  the 
north  coast  of  Cuba  between  Cardenas  and  Bahia  Honda 
and  of  Cienfuegos  on  the  south  coast  was  declared  by  the 
President.  On  June  27,  the  President  by  proclamation 
gave  notice  that  the  Cuban  blockade  had  been  extended  to 
include  all  the  ports  on  the  southern  coast  between  Cape 
Francis  and  Capo  Cruz.  This  included  the  port  of  Man- 
zanillo.  On  the  28th,  this  proclamation  was  made  known 
to  the  vessels  off  Guantanamo.* 

On  June  ^7,  the  Adula,  then  at  Kingston,  was  engaged 
in  taking  on  a  cargo  for  shipment.  On  the  28th  she  dis- 
charged this  cargo,  and  the  agent  of  the  Atlas  Company 
entered  into  a  charter  party  with  one  Solis,  a  Spanish  sub- 
ject formerly  resident  in  Manzanillo,  of  the  material  parts 
of  which  the  following  is  a  copy: 

The  Adula  was  put  at  the  disposal  of  the  charterer  ''for 
the  conveyance  of  passengers  from  Cuban  ports  herein- 
after to  bo  named,  to  Kingston.  The  ports  that  the  vessel 
is  to  <ro  to  aro  Manxanillo,  Santiago  and  Guantanamo:  but 


106 
statement    of  it  is  distinctly  understood  and  agreed  by  the  parties  afore- 

the  case. 

said  that  it  shall  not  be  deemed  a  breach  of  this  agreement 
should  the  steamer  be  prevented  from  entering-  any  of 
those  ports  from  causes  beyond  the  control  of  tne  corn- 
pan}",  but  that  should  she  be  able  to  enter  one  or  all  of 
them,  she  shall  embark  the  passengers  that  the  charterer 
shall  engage  for  her  and  proceed  on  her  voyage.  If-  she 
is  not  permitted  to  enter  either  Man/an  illo,  Santiago  or 
Guantanamo,  the  vessel  is  to  return  to  Kingston,  and  the 
voyage  shall  be  considered  completed,  and  the  charter 
money  hereinafter  referred  to  earned  without  any  deduc- 
tions. .  .  .  The  charterer  is  to  provide  a  good  and  effi- 
cient government  pilot  to  conduct  the  ship  safeh'  into  the 
ports  which  have  been  named.  Should  she  be  permitted 
to  enter  them  the  charterer  guarantees  that  the  proper 
and  efficient  clearances  shall  be  obtained  for  each  port,  so 
that  the  ship  shall  not  be  subjected  to  any  fines  for  breach 
of  regulations.  .  .  .  The  company  will  give  the  option 
to  the  charterer  for  another  voyage  similar  to  this  on  simi- 
lar terms,  providing  the  charterer  gives  the  company 
twenty-four  hours'  notice  after  the  arrival  of  the  steamer 
at  Kingston. 

Accompanying  this  charter  were  certain  instructions, 
printed  in  the  margin,1  from  the  agent  of  the  compan}7  to 

1  ATLAS  STEAMSHIP  COMPANY, 

JAMAICA  AGENCY,  June  28, 1898. 
'Captain  Yeates,  S.  S.  Adula. 

DEAR  SIR:  I  inclose  herein  a  copy  of  the  agreement  under  which 
your  vessel  is  proceeding  on,  and  on  board  the  ship  will  be  the  char- 
terer, to  whom  I  now  introduce  you,  Mr.  Jose  R.  Solis,  and  I  ask  you 
to  show  him  every  attention  on  the  voyage. 

You  will  see  by  a  perusal  of  the  agreement  that  you  are  on  a  voyage 
wholly  and  solely  for  the  conveyance  of  refugees  from  the  ports  named 
to  Kingston. 

On  your  arrival  at  Guantanamo,  to  which  port  you  will  proceed 
•direct,  you  will  find,  no  doubt.  American  warships  off  the  port.  You 
will,  when  signalled  to,  stop  immediately  and  communicate  to  the 
•commanding  officer  the  voyage  that  you  are  on,  and,  in  fact,  you  can 
.show  him  these  sailing  orders,  and  I  do  not  think  that  the  command- 
ing officer  will  make  any  trouble  whatever  to  your  continuing  the 
voyage  into  the  port. 

You  must  be  careful  011  your  arrival  there  not  to  interfere  or  in  any 
way  make  any  observation  or  sketches  of  anything  that  you  may  see 
or  hear  of,  but  adhere  strictly  to  the  duties  of  your  ship. 

At  Guantanamo  it  is  likely  there  may  be  some  difficulty  in  obtain- 
ing a  pilot,  and  if  the  commanding  officer  gives  you  permission  to 
proceed  it  is  just  possible  that  he  may  be  able  to  tell  you  where  you 
can  obtain  the  services  of  a- pilot  to  go  in. 

From  Guantanamo  you  will  proceed  to  off  Santiago.    Here  you  will 


107    . 
Captain  Yeatea.  the  commander  of  the  Adula.    These  were    snitt-im-nt    «>f 

tilt*  <*MSC. 

taken  from  the  ship  when  she  was  captured.  The  Adula 
left  Kingston  late  in  the  afternoon  of  June  28.  Before 
.sailing,  Solis  asked  from  the  United  States  consul  at 
Kingston  a  permit  to  enter  the  ports  of  Guantanamo,  San- 
tiago and  Manzanillo.  This  the  consul  refused  to  give 
without  special  instructions  from  Washington.  Just  be- 
fore sailing  to  Santiago,  Solis  cabled  for  a  licensed  pilot 
to  meet  the  Adula.  On  leaving  Kingston  she  took  her 
course  around  Morant  Point  at  the  easterly  epd  of  the 
island,  first  toward  Santiago,  and  then  to  Guantanamo, 
and  about  4:  r.  M.  of  the  following  da}'  was  met  before 
reaching  the  harbor  and  brought  to  by  the  steamship 
Vixen;  was  directed  to  proceed,  entered  the  harbor  of 
Guantanamo,  and  was  seized  by  the  Marblehead,  which, 
with  other  vessels  of  the  fleet,  was  lying  inside  the  bay, 
and  was  sent  to  Savannah,  where  a  libel  in  prize  was  filed 
against  her  on  July  21,  1898.  The  depositions  in  prepa- 
j-aturto  were  taken  July  21,  and  her  owner,  the  Atlas 
Steamship  Company,  appeared  as  claimant  and  filed  its 
answer.  The  case  was  heard  upon  the  proofs  in prepara- 
}<>!'!<>,  and  a  decree  of  condemnation  entered  July  28.  (89 
Fed.  Rep.  351.)  Before  the  decree,  claimant  moved  for 
leave  to  take  further  proofs.  The  court  set  the  motion 
down  for  August  9,  giving  claimant  leave  to  serve  such 
affidavits  and  other  papers  as  it  might  desire  to  read  upon 

meet  the  other  fleet,  and  carry  the  same  instructions  out  with  them 
as  I  have  mentioned  to  you  in  reference  to  Guantanamo.  The  char- 
terer is  telegraphing  at  once  to  Santiago  for  a  pilot  to  come  off  to  meet 
the  ship,  if  permission  is  granted,  to  pilot  your  ship  into  the  port. 

From  Santiago  you  will  proceed  to  Manzanillo,  and  from  thence 
back  to  Kingston.  The  charterer,  Mr.  Solis,  may  order  you  direct 
from  Guantanamo  to  Kingston  or  from  Santiago  to  Kingston,  and  in 
such  a  case  you  will  follow  out  his  orders,  which  he  will  give  you  in 
writing.  He  has  the  option  of  going  to  the  three  ports,  but  it  may  be 
convenient  for  him  to  go  to  only  one  or  even  two.  The  boat's  crew 
that  is  mentioned  in  the  appendix  of  this  agreement  you  will  provide, 
but  it  will  be  necessary  for  you  to  have  the  ensign  in  the  stern,  so  as 
to  show  your  nationality. 

You  will  not  allow  any  provisions  of  any  sort  to  leave  your  ship  at 
any  of  the  ports  or  to  do  anything  that  is  contrary  to  the  laws  of  the 
country  or  that  may  be  interpreted  as  a  breach  of  faith  in  being 
allowed  to  pass  the  blockade  and  enter  the  ports,  and  I  must  ask  you 
not  to  permit  any  of  your  crew  to  land  at  any  of  the  ports,  and  only 
yourself,  if  necessary,  to  visit  the  British  consul. 
Wishing  you  a  pleasant  voyage,  I  am,  sir, 
Yours  faithfully, 

(S'g'd)     W.  PEPLOE  F<>inv<»<>n,  <len.  Ag't,  Jca. 


108 
statement    of  the   motion,  and  directed   the  entry  of  the  decree  to  be 

the  case.  .  .  . 

without  prejudice  to  such  motion.  The  motion  was  finally 
denied,  and  the  vessel  released  upon  a  stipulation  for  her 
value. 

From  the  decree  of  condemnation  her  owner  and  claim- 
ant appealed  to  this  court. 

MR.  JUSTICE  BROWN,  after  stating  the  case,  delivered 
the  opinion  of  the  court. 

opinion.  The  rectitude  of  the  decree  by  the  District  Court  con- 

demning .the  Adula  as  prize  of  war  depends  upon  the 
existence  of  a  lawful  and  effective  blockade  at  Guantanamo, 
the  knowledge  of  such  blockade  by  those  in  charge  of 
the  vessel,  and  their  intent  in  making  the  voyage  from 
Kingston. 

1.  No  blockade  of  Guantanamo  was  ever  proclaimed  by 
the  President.  A  proclamation  had  been  issued  June  27, 
establishing  a  blockade  of  all  ports  on  the  southern  coast 
of  Cuba  between  Cape  Frances  on  the  west  and  Cape  Cruz 
on  the  east,  but  as  both  Guantanamo  and  Santiago  are  to 
the  eastward  of  Cape  Cruz,  they  were  not  included.  It 
appears,  however,  that  blockades  of  Santiago  and  Guan- 
tanamo were  established  in  the  early  part  of  Juno  by  order 
of  Admiral  Sampson,  commander  of  the  naval  forces  then 
investing  the  ports  on  the  southern  coast  of  Cuba,  and 
were  maintained  as  actual  and  effective  blockades  until 
after  the  capture  of  the  Adula. 

Actual  as  dis-  The  legality  'of  a  simple  or  actual  blockade  as  distin- 
pubiic  blockade,  guished  from  a  public  or  Presidential  blockade  is  noticed 
by  writers  upon  international  law,  and  is  said  by  Halleck 
to  be  "constituted  merely  by  the  fact  of  an  investment, 
and  without  any  necessity  of  a  public  notification.  As  it 
arises  solely  from  facts  it  ceases  when  they  terminate;  its 
existence  must,  therefore,  in  all  cases,  be  established  by 
clear  and  decisive  evidence."  (Halleck  Int.  L.,  chap.  23, 
sec.  10.)  A  de  facto  blockade  was  also  recognized  as  legal 
by  this  court  in  the  case  of  The  Circassian,  2  Wall.  135, 
150,  in  which  the  question  arose  as  to  the  blockade  of  New 
Orleans  during  the  civil  war.  In  delivering  the  opinion 
of  the  court,  the  Chief  Justice  observed:  "There  is  a  dis- 
tinction between  simple  and  public  blockades  which  sup- 
Naval  officers  ports  this  conclusion.  A  simple  blockade  may  be  estab- 

raay     establish,.    ,-.,..  i      re  j.«  i  •  j"  -• 

actual  block-  hshed  by  a  naval  officer,  acting  upon  his  own  discretion  or 
under  direction  of  superiors,  without  governmental  noti- 
fication; while  a  public  blockade  is  not  only  established  in 
fact,  but  is  notified,  by  the  government  directing  it,  to 


109 

other  governments.  In  the  ease  of  a  simple  blockade,  the 
captors  are  bound  to  prove  its  existence  at  the  time  of 
capture;  while  in  the  case  of  a  public  blockade,  the  claim- 
ants are  held  to  proof  of  discontinuance  in  order  to  pro- 
tect themselves  from  the  penalties  of  attempted  violation." 
A  like  ruling  was  made  by  Sir  William  Scott  in  the  case  sir  wniiam 

,•     >m        7-1    77        n  n.     r>    i       r,/i  i  •    i  J.L  j;          Scott  on  right  of 

ot  1/ie  Jiolta,  6  C.  Kob.  364,  which  was  the  case  ot  annavai  officers  to 
American  ship  and  cargo,  proceeded  against  for  the  breach  iZckades*0 
of  a  blockade  at  Montevideo,  imposed  by  the  British  com- 
mander. It  was  argued,  apparently  upon  the  authority 
of  The  Henrick  and  Maria,  1  C.  Rob.  123,  that  the  power 
of  imposing  a  blockade  is  altogether  an  act  of  sovereignty 
which  cannot  be  assumed  or  exercised  by  a  commander 
without  special  authority.  But  says  the  learned  judge: 
"The  court  then  expressed  its  opinion  that  this  was  a 
position  not,  maintainable  to  that  extent;  because  a  com- 
mander going  out  to  a  distant  station  may  reasonably  be 
supposed  to  cany  with  him  such  a  portion  of  sovereign 
authority,  delegated  to  him,  as  may  be  necessary  to  pro- 
vide for  the  exigencies  of  the  service  upon  which  he  is 
employed.  On  stations  in  Europe,  where  government  is 
almost  at  hand  to  superintend  and  direct  the  course  of 
operations,  under  which  it  may  be  expedient  that  particu- 
lar hostilities  should  be  carried  on,  it  may  be  different. 
But  in  distant  ports  of  the  world  it  can  not  be  disputed,  I 
conceive,  that  a  commander  must  be  held  to  carry  with 
him  sufficient  authority  to  act,  as  well  against  the  com- 
merce of  the  enemy,  as  against  the  enemy  himself,  for  the 
immediate  purpose  of  reduction.  See  also  The  Johanna 
Maria,  Deane  on  Blockades,  86. 

In  view  of  the  operations  then  being  carried  on  for  the    Blockade  of 

r  Guantanamo 

purpose  of  destroying  or  capturing  the  Spanish  fleet  and  competently  es- 
reducing  Santiago,  we  think  it  was  competent  for  Admiral 
Sampson  to  establish  a  blockade  there  and  at  Guantanamo 
as  an  adjunct  to  such  operations.  Jndeed,  it  would  seem 
to  have  been  a  necessity  that  restrictions  should  be  placed 
upon  the  powrer  of  neutrals  to  carry  supplies  and  intelli- 
gence to  the  enemy,  as  they  wpuld  be  quite  sure  to  do,  if 
their  ships  were  given  free  ingress  and  egress  from  these 
harbors.  While  there  could  be  no  objections  to  vessels 
carrying  provisions  to  the  starving  insurgents,  if  their 
destination  could  be  made  certain,  the  probabilities  were 
that  such  provisions  carried  to  a  beleaguered  port,  would 
be  immediately  sei/ed  by  the  enemy  and  used  for  the  sus- 
tenance of  its  soldiers.  The  exigency  was  one  which  ren- 


110 

dered  it  entirely  prudent  for  the  commander  of  the  fleet 
to  act,  without  awaiting  instructions  from  Washington. 
contention      But  it  is  contended  that  at  the  time  of  the  capture,  the 

that    blockade 

was  ended    by  port  of  Guantanamo  was  completely  in  the  possession  and 

i  >'isscssion 

control  of  the  United  States,  and  therefore  that  the  block- 
ade had  been  terminated.  It  appears,  however,  that  Guan- 
tanamo  is  eighteen  miles  from  the  mouth  of  Guantanamo 
Bay.  Access  to  it  is  obtained  either  by  a  small  river 
emptying  into  the  upper  bay,  or  by  rail  from  Caimanera, 
a  town  on  the  west  side  of  the  upper  bay.  It  seems  that 
the  Marblehead  and  the  Yankee  were  sent  to  Guantanamo 
on  June  7;  entered  the  harbor  and  took  possession  of  the 
lower  bay  for  the  use  of  American  vessels;  that  the  Pan- 
ther and  Yosemite  were  sent  there  on  the  10th,  and  on  the 
12th  the  torpedo  boat  Porter  arrived  from  Guantanamo 
with  news  of  a  land  battle,  and  from  that  time  the  harbor 
was  occupied  by  naval  vessels,  and  by  a  party  of  marines 
who  held  the  crest  of  a  hill  on  the  west  side  of  the  harbor 
near  its  entrance,  and  the  side  of  the  hill  facing  the  har- 
bor. But  the  town  of  Guantanamo,  near  the  head  of  the 
bay,  was  still  held  by  the  Spanish  forces,  as  were  several 
other  positions  in  the  neighborhood.  The  campaign  ia 
the  vicinit}^  was  in  active  progress,  and  encounters  between 
the  United  States  and  Spanish  troops  were  of  frequent 
occurrence. 

Town  beyond      In  view  of  these  facts  we  are  of  opinion  that,  as  the  city 
was  held  by  enc-  of  Guantanamo  was  still  held  by  the  Spaniards,  and  as  our 

my  and  blockade  ...          ,,  ,-.,11  .,11111 

was  operative,  troops  occupied  only  the  mouth  ot  the  bay,  the  blockade 
was  still  operative  as  against  vessels  bound  for  the  city  of 
Guantanamo.  Here  again  the  case  of  TJie  Circassian,  2 
The  Circassian.  Wall.,  135,  is  decisive.  The  Circassian  was  captured 
May  4,  1862,  for  an  attempted  violation  of  the  blockade 
of  New  Orleans.  The  city,  including  the  ports  below  it 
on  the  Mississippi,  was  captured  during  the  last  days  of 
April,  and  military  possession  of  the  city  taken  on  May  first. 
It  was  held  that  neither  the  capture  of  the  forts  nor  the 
military  occupation  of  the  city  terminated  the  blockade, 
upon  the  ground  that  it  applied,  not  to  the  city  alone,  but 
controlled  the  port,  which  included  the  whole  parish  of 
New  Orleans,  and  lay  on  both  sides  of  the  Mississippi, 
and  all  the  ports  on  that  river  and  on  the  lakes  east  of  the 
city.  The  following  language  of  the  Chief  Justice  is 
equally  pertinent  to  this  case:  "Now,  it  may  be  well 
enough  conceded  that  a  continuous  and  complete  pos- 
session of  the  city  and  the  port,  and  of  the  approaches 


Ill 

from  the  Gulf,  would  make  a  blockade  unnecessary,  and 
would  supersede  it.  But,  at  the  time  of  the  capture  of 
the  Circassian,  there  had  been  no  such  possession.  Only 
the  city  was  occupied,  not  the  port,  much  less  the  district 
of  country  commercially  dependent  upon  it,  and  block- 
aded by  its  blockade.  Even  the  city  had  been  occupied 
only  three  days.  It  was  }ret  hostile;  the  rebel  arnvy  was 
in  the  neighborhood;  the  occupation,  limited  and  recent, 
was  subject  to  all  the  vicissitudes  of  war.  Such  an  occu- 
pation could  not  at  once,  of  itself,  supersede  or  suspend 
the  blockade.  It  might  ripen  into  a  possession  which  would 
have  that  effect,  and  it  did;  but  at  the  time  of  the  capture 
it  operated  only  in  aid  and  completion  of  the  naval  invest- 
ment." The  occupation  of  a  city  terminates  a  Blockade  jj^1 
because,  and  only  because,  it  supersedes  it,  and  if  a  vessel  b:'"'kade- 
be  bound  to  a  port  or  place  be}rond,  which  is  still  occu- 
pied by  the  enemy,  the  occupation  of  the  mouth  of  the 
harbor  does  not  necessarily  terminate  the  blockade  as  to 
such  places. 

Granting  the  existence  of  a  lawful  and  sufficient  blockade    Legal  effect  of 

suthcieut  bloc-k- 

at  Guantanamo,  its  legal  effect  was  a  closing  of  the  port.  »<ie. 
and  an  Interdiction  of  the  entrance  of  all  vessels  of  what- 
ever nationality  or  business.  It  is  well  described  by  Sir 
William  Scott  in  The  Vroitw  Judith,  \  C.  Rob.  126,  128, 
"as  a  sort  of  circumvallation  round  a  place,  by  which  all 
foreign  connection  and  correspondence  is,  as  far  as  human 
force  can  effect  it,  to  be  entirely  cut  off.  It  is  intended 
to  suspend  the  entire  commerce  of  that  place,  and  a  neu- 
tral is  no  more  at  liberty  to  assist  the  traffic  of  exportation 
than  of  importation.  The  utmost  that  can  be  allowed  to  a 
neutral  vessel  is,  that  having  already  taken  on  board  a 
cargo  before  the  blockade  begins,  she  may  be  at  liberty 
to  retire  with  it.  But  it  must  be  considered  as  a  rule 
which  this  court  means  to  apply,  that  a  neutral  ship  de- 
parting can  only  take  awajr  a  cargo  Jxmajide  purchased 
and  delivered,  before  the  commencement  of  the  blockade. 
If  she  afterwards  takes  on  board  a  cargo  it  is  a  fraudulent 
act  and  a  violation  of  the  blockade."  It  is  also,  said  by 
Phillimore,  3  Int.  Law,  383,  that  "the  object  of  :i  blockade 
is  to  prevent  exports  as  well  as  imports,  and  to  cut  off  all 
communication  of  commerce  with  the  blockaded  place."  intent  is  an 
The  sailing  of  a  vessel  with  a  premeditated  intent  to  vio-  iton. 
late  a  blockade  is  ip*<>  facto  a  violation  of  the  blockade, 
and  renders  the  vessel  subject  to  capture  from  the  mo- 
ment she  leaves  the  port  of  departure.  Yeatou  v.  Fry 


Cranch,  335;  The  Circassian,  2  Wall.  135;  The  Frederick 
Molke,  1  C.  Rob.  72;  The  Columbia,  1  C.  Rob.  130;  The 
Neptunus,  2  C.  Rob.  110;  Wheaton  on  Captures,  196.  If  a 
master  have  actual  notice  of  a  blockade,  he  is  not  at  liberty 
Blockaded  even  to  approach  the  blockaded  port  for  the  purpose  of 

ports  may  not  be  .    .  ,,    , ,         ,  ,       ,       , .  . 

knowingly   ap-making'  inquiries  or   the   blockading-  vessels,   since   such 

preached.  , 

liberty  could  not  tail  to  lead  to  attempts  to  violate  the 
blockade  under  pretext  of  approaching-  the  port  for  the 
purpose  of  making  such  inquiries.  The  Admiral,  3  Wall. 
603;  The  Prize  Cases,  2  Black,  635,  677;  Duer  on  ins.  661; 
The  Cheshire,  3  Wall.  231;  The  James  Cook,  Edwards,  261; 
The  Josephine,  3  Wall.  83;  The  Spes,  5  C.  Rob.  76;  The 
Betsy,  1  C.  Rob.  280;  The  Neptnnus,  2  C.  Rob.  110;  The 
Little  William,  1  Acton,  141,  161;  Sperry  v.  Delaware 
Ins.  Co.,  2  Wash.,  C.  C.  243.  If  there  be  any  distinction 
in  this  particular  between  a  proclaimed  blockade  and  an 
actual  blockade  by  a  naval  commander,  it  does  not  aid  the 
Adula  in  view  of  the  admitted  fact  that  she  was  informed 
by  the  Vixen  that  the  port  was  under  control  of  the  United 
States  military  forces,  and  that  the  war  ships  were  visible 
before  she  entered  the  bay. 

Bearing  of  tin;     In  this  connection  we  are  cited  by  counsel  for  the  Adula 
Pans.  to  a  change  in  the  law  said  to  have  been  effected  by  the 

adhesion  of  this  Government,  at  the  beginning-  of  the  war, 
to  the  declaration  of  Paris  abolishing  privateering.  This 
supposed  change  apparently  rests  upon  an  extract  from  a 
French  treatise  upon  international  law  by  Pistoye  and 
Duverdy,  vol.  1,  p.  375^  in  which  it  is  said  that  by  the 
modern  law,  in  consequence  of  the  declaration  of  Paris,  a 
vessel  must  be  notified  to  depart  from  the  blockaded  port 
before  she  can  be  captured,  and  that  the  contrary  rule  was 
the  result  of  the  doctrine  of  the  British  Orders  in  Council 
during  the  Napoleonic  wars,  which  is  now  given  up  by 
that  country.  It  is  also  said  that  "the  old  rule  was  that 
it  was  a  breach  of  blockade  to  enter  upon  a  voyage  to  the 
blockaded  port.  This  rule  is  now  changed,  because  neu- 
trals are  obliged  only  to  respect  effective  blockades.  It 
may  well  be  that  a  blockade  of  which  official  notice  has 
been  given  is  not  an  effective  blockade,  or  it  ma}r  be  that 
a  blockade  which  has  been  established  by  a  sufficient  force 
may  have  ceased  to  exist.  Neutrals  then  have  the  right 
to  begin  a  voyage  to  a  blockaded  port  in  order  to  see  if 
the  blockade  still  continues.  The}1  are  only  guilty  when, 
while  the  blockade  continues,  they  actually  endeavor  to 
break  it," 


113      - 
We  cannot,  however,  accept  this  opinion  as  overruling    Foreign  opin- 

,      .   .  f  ,      ton"  of  supposed 

in  anv  particular  the  prior  decisions  ot  this  court  in  the  law  cannot  over- 
i         «  i  i  f          til     rn'e     Supreme 

cases  above  cited,  to  the  etteet  that  a  departure  tor  a  block-  courfBdeokiom. 
aded  port  with  intent  to  violate  the  blockade  renders  the 
vessel  liable  to  seizure.  When  Congress  has  spoken  upon 
this  subject  it  will  be  time  enough  for  this  court  to  act. 
We  can  not  change  our  rulings  to  conform  to  the  opinions 
of  foreign  writers  as  to  what  they  suppose  to  be  the  exist- 
ing law  upon  the  subject. 

We  have  not  overlooked  in  this  connection  the  provi- 
sion contained  in  Art.  18  of  Jay's  treat}-  of  1794,  to  the 
effect  that  "  whereas,  it  frequently  happens  that  vessels 
sail  for  a  port  or  place  belonging  to  an  enemy,  without 
knowing  that  the  same  is  either  besieged,  blockaded  or 
invested,  it  is  agreed,  that  every  vessel  so  circumstanced, 
may  be  turned  away  from  such  port  or  place,  but  she  shall 
not  be  detained  nor  her  cargo,  if  not  contraband,  confis- 
cated, unless  after  notice  she  shall  again  attempt  to  enter." 
Fitzfrimmone  v.  Newport  Ins.  Co.,  4  Cranch,  185.  Waiv- 
ing the  question  whether  this  clause  of  Jay's  treaty  was 
abrogated  by  the  war  of  1812,  and  accepting  it  as  a  correct 
exposition  of  the  law  of  nations,  it  applies  only  to  vessels 
which  have  sailed  for  a  hostile  port  or  place  without  know- 
ing that  the  same  is  either  besieged,  blockaded  or  invested. 
The  whole  case  against  the  Adula  depends  upon  the  ques-  Basis  of  case 
tion  whether  those  in  charge  of  her  knew  before  she  leftfjfalE 
Kingston  that  Santiago  and  Guantanamo  were  blockaded. 
If  they  did,  the  treaty  does  not  apply.  If  they  did  not, 
they  are  entitled  to  the  benefit  of  this  principle  of  inter- 
national law.  In  the  case  of  the  Maryland  Ins.  Co.  \. 
Woods,  6  Cranch,  29,  in  which  it  was  held  that  the  vessel 
could  not  be  placed  in  the  situation  of  one  having  notice 
of  the  blockade  until  she  was  warned  off,  the  decision  was 
placed  upon  the  express  ground  that  orders  had  been  given 
by  the  British  government,  and  communicated  to  our  gov- 
ernment, "  not  to  consider  blockades  as  existing,  unless  in 
respect  to  particular  ports  which  may  be  actually  invested, 
and  then  not  to  capture  vessels  bound  to  such  ports,  unless 
they  shall  have  been  previously  warned  not  to  enter  them.r 
This  order  was  treated  by  the  court  as  a  mitigation  of  the 
general  rule  so  far  as  respected  blockades  in  the  West 
Indies. 

'2.   The  questions  concerning  the  notification  of,  and  the    ownership   of 
intent  to  violate,  blockade  depend  largely  upon  the  same 
testimony,   and   may    be   properly   disposed  of  together. 
l.>or,ti— 04- 8 


114 

There  is  no  doubt  that  the  Adula  belonged  to  a  British 
corporation,  the  Atlas  Steamship  Company;  was  regis- 
tered in  the  name  of  the  managing  director  of  such  corpo- 
ration; flew  the  British  flag,  and  prior  to  the  Spanish- 
American  war  was  engaged  in  general  trade  between 
Kingston  and  other  ports  on  the  coast  of  Jamaica,  in  con- 
nection with  other  steamers  of  the  same  line  from  New 
York,  and  from  time  to  time  had  made  voyages  to  Cuban 
Previous  ciwr-  ports.  After  the  breaking  out  of  the  war  the  steamer  was 
chartered  by  various  persons,  in  the  intervals  of  its  regu- 
lar work  for  voyages  to  Cuba.  On  May  7,  in  pursuance 
of  a  verbal  arrangement  between  the  agent  of  the  steam- 
ship company  and  the  American  consul,  the  Adula  was 
sent  to  Cienfuegos  in  Cuba  to  bring  away  refugees.  On 
arrival  off  Cienfuegos  she  was  boarded  by  officers  of  the 
U.  S.  S.  Marblehead,  who,  upon  being  shown  the  permit 
and  the  ship's  papers,  allowed  her  to  proceed,  though  the 
officers  served  the  master  with  a  printed  copy  of  the  Pres- 
ident's proclamation  blockading  Cienfuegos  and  several 
ports  on  the  north  side  of  Cuba,  and  made  a  memorandum 
on  the  ship's  log  that  they  had  done  so.  She  sailed  from 
Cienfuegos  May  10,  with  350  passengers,  mostly  women 
and  children;  was  again  boarded  on  leaving  the  port,  but 
was  allowed  to  proceed. 

On  May  16,  she  was  chartered  by  a  Cuban  refugee  to 
proceed  to  Santiago;  arrived  there  the  following  day,  and 
returned  with  200  passengers.  No  war  ships  were  off 
Santiago  at  that  time.  She  arrived  at  Kingston  on  the 
19th,  and  landed  her  passengers. 

On  May  21,  she  was  again  chartered  to  go  to  Cienf  uo- 
gos,  having  a  permit  from  Washington, 'through  the  con- 
sul, to  pass  the  blockade.  She  reached  the  blockading 
fleet  on  the  23d,  was  boarded  by  a  boat  from  one  of  the 
vessels,  and  was  again  given  permission  to  proceed;  was 
arrested  upon  suspicion  by  the  Spanish  authorities  in  the 
port  of  Cienfuegos,  but  after  a  detention  of  sixty  hours 
was  released.  She  sailed  again  on  May  26  directly  for 
Kingston;  saw  no  war  ships  in  sight,  and  arrived  at 
Kingston  on  May  28. 

After  making  two  of -her  ordinary  coasting  voyages 
around  Jamaica,  she  was  offered  a  further  charter  for 
Cienfuegos,  but  could  not  obtain  the  permission  of  the 
American  consul,  who  told  the  master  he  had  no  authority 
to  grant  it.  She  left  June  15,  with  a  letter  of  instruc- 
tions to  the  captain  to  proceed  to  the  fleet  off  Cienfuegos, 


115 

then  under  a  public  blockade,  to  ask  permission  from  them 
to  enter  the  port,  and  if  granted,  to  go  in,  and  if  not 
granted,  to  return  to  Jamaica.  She  arrived  at  Cienf uegos 
Juno  IT;  landed  some  provisions  which  had  been  shipped 
for  her  passengers,  found  no  war  ships  there,  and  sailed 
away  on  the  19th  with  only  ninety-eight  passengers. 
Sixty  miles  S.  S.  E.  from  Cienf  uegos  she  was  stopped  by 
the  U.  S.  S.  Yankee,  and  an  officer  sent  on  board.  The 
master  showed  the  boarding  officer  his  instructions  and 
the  ship's  papers,  as  well  as  the  passenger  list;  was  in- 
formed that  Cienf  uegos  was  blockaded,  and  that  he  must 
not  enter  it  again.  She  arrived  in  Kingston  on  June  21; 
proceeded  around  the  island  on  her  usual  coasting  trip, 
and  returned  to  Kingston  on  the  27th. 

She  was  chartered  for  her  last  vovage  June  28,  bv  one    Last    charter, 

C-    i-  LJ          •   u        i  •      .L    i_  TT  j  i-    •  -.LI    lllld         political 

Sons,  a  Spanish  subject,  born  near  Havana,  and  living  with  Character  of  the 
his  family  at  Manzanillo.  He  had  landed  recently  from 
Manzanillo  with  a  cargo  of  refugees.  He  had  lived  in  Cuba, 
and  at  one  time  had  been  the  French  consul  at  Manzanillo, 
though  there  was  no  evidence  that  he  had  ever  cooperated 
with  the  Spanish  authorities  during  the  war,  or  rendered 
aid  or  comfort  to  the  Spanish  forces.  He  had,  however, 
a  passport  from  the  Spanish  consul  to  enter  the  cities  to 
which  he  was  bound  and  take  passengers  away  as  refugees. 
He  had  previously  been  engaged  in  shipping  supplies  to 
Cuban  ports  and  returning  with  passengers  for  Jamaica. 
He  also  carried  a  special  personal  Spanish  passport 
granted  the  year  before.  Such  being  his  political  char- 
acter, he  entered  into  a  charter  party  with  the  Atlas 
Steamship  Company,  under  which  he  was  at  liberty  to  go 
to  Manzanillo,  Santiago  and  Guantanamo,  and  if  not  per- 
mitted to  enter  these  harbors,  to  return  to  Kingston.  An 
option  was  also  given  to  the  charterer  for  another  similar 
voyage  upon  like  terms  upon  twenty-four  hours'  notice 
after  arrival  at  Kingston.  The  charter  was  for  the  con- 
veyance of  passengers  from  Cuban  ports  to  Kingston  at 
one  hundred  pounds  per  day.  Solis  was  entered  upon  the 
ship's  articles  as  supercargo.  She  was  evident^ chartered 
for  his  personal  benefit,  with  power  to  name  the  port 
which  she  was  to  visit,  but  with  no  right  to  interfere  with 
the  navigation  of  the  ship.  Solis  had  made  the  same  sort 
of  trip  twice  before  with  English  schooners,  and  expected 
upon  this  trip  to  make  $19,000  profit.  He  appeared  to 
have  known  nothing  about  the  previous  voyages  of  the 
Adula,  and  had  seen  her  for  the  first  time  only  about  two 


116 

months  before.  The  vessel  bore  a  passport  from  the 
Spanish  consul  at  Kingston;  a  bill  of  health  vised  by  the 
Spanish  consul.  With  regard  to  his  knowledge  of  the 
blockade  at  Guantanamo  he  testified  as  follows: 

"^  knew  that  there  was  a  condition  of  war  existing 
blockade.  between  America  and  Spain  on  the  21st.  They  told  me 
on  board  the  Adula  that  the  blockade  of  Guantanamo  was 
published  on  the  27th,  the  day  before.  I  had  not  heard 
it  before  I  left  Kingston.  I  did  not  know  officially  Guan- 
tanamo was  blockaded.  On  board  the  Adula  I  heard  that 
on  the  27th  there  was  issued  an  order  from  the  President 
of  the  United  States  declaring  a  blockade  of  the  port  of 
Guantanamo,  but  I  did  not  know  it  until  we  arrived  at 
Guantanamo.  At  Kingston  1  heard  there  were  some  war 
ships  at  Guantanamo,  and  I  told  Captain  Forwood  that 
the  first  thing  1  would  do  would  be  to  go  to  the  admiral 
and  tell  him  my  intentions.  I  did  not  think  the  papers  in 
Kingston  published  the  blockade.  I  did  not  see  it  if  they 
did.  The  people  generally  did  not  talk  about  it.  1  read 
something  about  '  McCalla's  camp. '  I  understood  Guan- 
tanamo was  not  blockaded  by  the  United  States.  I  heard 
that  marines  had  been  landed  at  the  entrance  to  Guan- 
tanamo, Caimenera — the  bay  is  called  Caimenera — and 
that  the  marines  had  possession  of  the  port,  and  that  the 
ships  were  inside.  1  cannot  tell  when  I  received  the 
information  that  marines  had  been  landed  there  and  taken 
possession  of  the  point  of  Guantanamo  or  Caimenera. 
Perhaps  it  was  one  or  two  days  before.  I  don't  know 
what  the  others  knew  about  a  state  of  war  existing.  I 
understood  Guantanamo  was  not  declared  officially  block- 
aded, although  there  were  some  vessels  there.  I  got  that 
information  from  newspapers  in  Kingston,  and  from  those 
newspapers  I  got  the  information  that  marines  had  been 
landed  at  the  entrance  to  the  bay  on  the  east  side;  they 
call  it 'East  Point.'" 
Aduia's  agent  Jt  further  appeared  that  the  American  consul  warned 

warned  of  the  r*  i_    •      ••  TT-- 

blockade  by  the  Mr.  Forwood,  the  agent  of  the  ship  at  Kingston,  or  the 

American  con-  '  ,      ,      -,       •  .    n 

sui-  existence  of  the  blockade  in  the  following  language,  as 

stated  by  the  agent  himself:  "'Well,  Forwood,  I  would 
not  advise  you  to  let  the  ship  go;  the}7  won't  let  her  into 
Guantanamo,  and  they  will  be  watching  for  her.'  I  said 
to  him,  '  Oh,  Dent,  let  me  show  you  the  captain's  instruc- 
tions. He  has  got  orders  to  go  to  the  fleet  there  and  ask 
their  permission  to  take  some  refugees.'  ;  Well,'  he  said, 
4 1  don't  know,  but  they  will  be  watching  for  her,  and  I 


117 

think  that  Senor  Soils  is  a  Spanish  agent,  carrying  $300,000 
in  gold  to  buy  over  the  rebels  in  the  American  camp.'  1 
told  him  that  I  had  inquired  about  the  man,  and  that  it 
was  one  of  the  usual  Kingston  yarns."  It  also  appears 
that  Mr.  Forwood  knew  that  Mr.  Solis  was  a  Spaniard, 
and  had  been  shipping  supplies  to  Cuban  ports.  After 
taking  on  board  a  large  supply  of  coal,  the  Adula  left 
Kingston  on  June  28;  rounded  Morant  Point  on  the  east 
end  of  the  island  of  Jamaica;  proceeded  at  her  usual  speed 
toward  Santiago,  and  sighted  the  blockading  fleet  off  that 
port  about  noon  of  the  29th.  The  captain  gives  as  his 
reason  for  going  by  the  way  of  Santiago  that  he  was  not 
acquainted  with  the  coast  line  to  the  eastward  of  that  port; 
had  no  large  scale  chart,  and  therefore  steered  more  to 
the  westward  than  he  should  have  done,  because  he  knew 
the  coast  about  Santiago,  and  did  not  know  that  about 
Guantanamo;  but  it  is  quite  as  probable  that  it  was  the 
presence  of  a  number  of  war  vessels  off  Santiago  which 
sent  her  to  Guantanamo.  She  was  hailed  by  the  Vixen 
within  half  a  mile  of  the  entrance  to  the  harbor  of  Guan- 
tanamo, brought  to,  and  then  directed  into  the  harbor, 
where  several  war  vessels  were  tying,  and  was  shortly 
thereafter  seized  by  order  of  Commander  McCalla  of  the 
Marblehead. 

In  his  testimonv  before  the  prize  commissioners,  Cap-    certain  testi- 

,  nil  niony  of  the  cap- 

tain Yeates,  master  of  the  Adula,  stated  that  he  was  stop-  tain  and  of  one 

()f    tilt1  C1*(?\V 

ped  by  the  Vixen  about  half  a  mile  from  the  entrance  to 
the  bay  and  permitted  to  proceed,  and  that  it  was  not  until 
after  he  had  anchored  that  he  was  acquainted  with  the 
blockade  of  the  harbor.  One  of  the  crew  testified  somewhat 
to  the  contrary  and  swore  that  "about  three  days  before  I 
left  Kingston  I  heard  that  Guantanamo  was  blockaded;  I 
heard  it  from  people  around  the  streets;  1  did  not  see  it;  I 
heard  it  was  in  the  papers;  I  never  heard  any  of  the  officers 
of  the  Adula  or  people  on  board  talking  about  Guantanamo 
being  blockaded,  and  I  don't  know  exactly  whether  the 
owner  or  master  or  officers  of  the  ship  Adula  knew  that 
Guantanamo  was  blockaded.  I  knew  about  it,  but  I  don't 
know  anything  about  them.  I  don't  know  how  1  found  it 
out,  but  I  heard  it  on  the  streets  of  Kingston."  He  also 
swore  "that  at  that  time  he  went  up  to  the  mouth  of  the 
harbor,  and  at  that  time,  when  we  got  to  Guantanamo,  we 
found  the  war  ships  there  blockading  the  harbor."  A 
small  cruiser,  the  Vixen,  "ran  up  across  our  bow  and  the 
captain  of  the  cruiser  asked  us:  "Didn't  you  sight  the  war 


118 

ships  down  at  Santiago? '  and  the  captain  said,  *  Yes.'  And 
the  captain  stopped,  and  he  said:  'Didn't  you  hear  that 
.  Guantanamo  was  blockaded?'  and  our  captain  said  '  Yes.' 
Then  he  said,  'You  can  proceed  on.'  1  heard  about  the 
blockade  in  Kingston,  but  after  leaving  Kingston,  until 
we  met  the  cruiser,  I  never  heard  anything  more  about  it/' 
Captain  Yeates  also  testified  that  he  expected  to  be  stop- 
ped when  he  approached  Santiago.  Mr.  Solis,  who  had 
chartered  the  Adula  for  this  voyage,  testified  that  he  was 
told,  while  on  board  the  Adula,  that  the  blockade  of  Guan- 
tanamo was  published  on  the  27th,  the  day  before,  but 
that  he  had  not  heard  of  it  before  he  left  Kingston,  though 
he  had  heard,  while  in  Kingston,  that  there  were  some 
war  ships  at  Guantanamo.  At  the  time  the  Adula  was 
captured  she  was  searched  for  her  ship's  papers  and  other 
documents  and  letters.  Several  letters  were  found,  as 
well  as  copies  of  a  newspaper  published  at  Kingston, 
which  spoke  of  the  American  military  and  naval  opera- 
tions both  at  Santiago  and  Guantanamo. 
Extracts  from  Among  these  extracts  from  The  Gleaner  of  June  1-i, 

a  Kingston  news-  •     7i        -   11        •  i       i    ,. 

paper.  1898,  is  the  following,  apparent^  telegraphed  from  Lon- 

don: "A  dispatch  boat  off  Santiago  reports  that  the  Amer- 
icans now  hold  thirty-five  miles  of  the  coast  east  of  San- 
tiago, including  Guantanamo  harbor,  and  that  20,000  Span- 
ish troops  at  Santiago  are  preparing  to  desperately  resist 
the  Americans,  who  have  landed  3,000  rifles,  300,000 
rounds  of  ammunition,  and  large  stores  of  provisions;" 
and  the  following  from  the  issue  of  June  25:  ''On  board 
the  Adula,  which  arrived  from  Cienfuegos  this  week,  there 
was  an  individual  officially  appointed  by  the  Captain  Gen- 
eral in  Cuba  to  make  arrangements  in  Jamaica  for  regu- 
larly suppl}Ting  the  Spanish  troops  with  provisions;  in 
fact,  to  make  Jamaica  a  base  for  Spanish  purposes." 

In  this  connection  it  would  seem  from  the  report  of  the 
Bureau  of  Navigation  that  the  consul  at  Kingston  tele- 
graphed to  Washington  that  the  Under  Secretary  of  the 
Captain  General  of  Cuba  and  certain  Spanish  naval  officers 
"  came  aboard  the  Adula  with,  it  is  supposed,  $250,000  to 
purchase  provisions  to  be  taken  to  Manzanillo  for  Cervera. 
.  .  .  Extensive  preparations  being  made  for  shipping 
provisions  to  Cuba." 
Letter  of  Cap  In  a  letter  from  Captain  Yeates  to  his  parents,  under 

paR.mesaes  llsdate  of  July  13,  and  apparently  written  when  the  Adula 
was  at  Savannah,  he  says:  "  And  now  to  tell  you  dear 
ones  how  it  is  or  was  that  we  got  into  this  pickle,  which 


119 

has  not  come  as  any  surprise,  as  I  have  anticipated  this 
for  some  time;  it  is  I  did  riot  think  1  should  be  in  com- 
mand when  it  happened,  but  it  was  my  luck  to  be,  I  sup- 
pose." Speaking  of  the  capture,  he  says:  "The}'  turned  • 
the  ship  upside  down;  took  my  papers;  measured  the 
coals,  and  took  stock  generally.  As  far  as  the  ship  is  con- 
cerned she  was  on  perfectly  legitimate  business,  fetching 
refugees.  Whether  Mr.  Solis  chartered  the  ship  for  that 
purpose  alone,  of  course,  has  to  be  proved,  and  we  are 
now  on  our  way  to  Savannah  for  that  purpose  with  a  prize 
crow  and  Lieutenant  Anderson  in  charge."  In  a  postscript 
dated  at  Savannah,  July  15,  he  says:  "  We  have  not  yet 
reached  the  town  proper,  for  we  are  going  through  the 
same  performance  as  we  did  at  Tampa,  but  I  was  not 
caught  this  time,  for  I  managed  to  keep  my  things  out  of 
the  oven." 

As  tending  to  show  the  good  faith  of  this  expedition,    Evidence  of 

j  Li-      i      i      AI_  *  XL      A  j    i  LI-    good  faith  of  this 

and  more  particularly  the  owners  of  the  Adula,  much  reh-  expedition. 
ance  is  placed  upon  the  letter  of  Mr.  Forwood  to  Captain 
Yeates  of  June  28,  the  day  upon  which  the  Adula  left 
Kingston,  in  which  he  instructs  him,  in  case  he  finds 
American  warships  off  Guaritanamo,  to  stop  immediately 
upon  being  signalled,  and  communicate  to  the  command- 
ing officer  the  object  of  the  voyage,  and  to  be  careful  upon 
his  arrival  "not  to  interfere,  or  in  any  way  make  any 
observations  or  sketches  of  anything  you  may  see  or  hear 
of,  but  adhere  strictly  to  the  duties  of  }rour  ship,"  and  to 
observe  the  same  precautions  off  Santiago.  In  this  letter 
he  also  instructs  him  not  to  allow  any  provisions  to  leave 
the  ship,  or  to  do  anything  which  could  be  interpreted  as 
a  breach  of  faith  in  being  allowed  to  pass  the  blockade  and 
enter  the  ports.  While  this  letter  doubtless  tends  to  showr 
good  faith  on  the  part  of  Mr.  Forwood,  still  it  was  writ- 
ten with  full  information  from  Mr.  Solis  that  the  consul 
had  refused  to  give  him  a  passport,  without  permission 
from  the  American  authorities  in  Washington.  That  Mr. 
Forwood  recognized  the  necessity  of  an  authority  from 
Washington  in  order  to  pass  the  blockade  is  shown  by  his 
letter  to  Captain  Walker  of  May  21,  1898,  in  reference  to 
one  of  the  voyages  to  Cienfuegos,  in  which  he  says:  "  In 
giving  this  letter  to  the  blockade,  be  sure  and  ask  the 
officer  if  he  would  allow  the  ship  to  pass  another  voyage 
without  cabling  to  Washington." 

From  all  the  testimony  in  the  case  it  appears  very  clear: 
That  (niantanamo  was  actually  and  effectively  blockaded 


by  orders  of  Admiral  Sampson  from  June  7  until  after 
the  capture  of  the  Adula; 

That  the  Adula  was  chartered  to  a  Spanish  subject  for 

a  voyage  to  Guantanamo,  Santiago  or  Manzanillo,  for  the 

purpose  of  bringing  away  refugees,  and  that  such  voyage 

was  primarily,  at  least,  a  commercial  one  for  the  personal 

status  of  neu-  profit  of  the  charterer.     During  such  charter  she  was  to  a 

tral  vessels  char-  *  .  ° 

tered  to  an  ene-  certain  extent,  f>ro  hac  vice*  a  Spanish  vessel,  and  a  notice 

my:    notice    of  .  '  A  .    ' 

blockade  toto  Solis  of  the  existence  of  the  blockade  was  a  notice  to 
tice  to  vessel,  the  vessel.  The  Ranger,  6  C.  Rob.  126;  The  Ybnge  Emilia, 
3  C.  Rob.  52;  The  Napoleon,  Blatch.  Prize  Cases,  296. 
The  fact  of  her  sailing  under  a  Spanish  passport — in  fact, 
an  enemy's  license — is  not  devoid  of  significance.  Indeed, 
we  have  in  several  cases  regarded  this  as  sufficient  ground 
for  condemnation.  The  India,  8  Cranch,  181 ;  The  Aurora, 
8  Cranch,  203;  The  Hiram,  1  Wheat.  440;  The  Ariadne, 
2  Wheat.  143.  This  passport  gave  the  Adula  authority 
to  enter  the  Cuban  ports  and  take  away  refugees,  and  it 
is  a  circumstance  worthy  of  notice  that  it  could  not  be 
found  when  the  vessel  was  captured.  Solis  acknowledged 
its  existence,  but  made  no  effort  to  account  for  its  loss; 

Both  Solis  himself  and  the  Adula  had  been  previously 
engaged  in  similar  enterprises  to  the  coast  of  Cuba,  and 
were  chargeable  with  notice,  not  only  of  war  between  the 
United  States  and  Spain,  but  with  the  fact  of  military  and 
naval  operations  upon  the  southern  coast  of  Cuba; 

The  fact  of  such  war,  that  the  object  of  it  was  the 
expulsion  of  the  Spanish  forces  from  Cuba,  and  that  mili- 
tary and  naval  operations  were  being  carried  on  by  us 
with  that  object  in  view,  must  have  been  matters  of  com- 
mon knowledge  in  Kingston,  as  well  as  the  fact  that  the 
commerce  with  the  southern  ports  of  Cuba  was  likely  to 
be  interrupted,  and  that  all  intercourse  with  such  ports 
would  become  dangerous  in  consequence  of  such  war; 
The Aduia \\as  While  the  mission  of  the  Adula  was  not  an  unfriendly 

not  a  cartel  ship.  _  g    • 

one  to  this  Government,  she  was  not  a  cartel  ship,  privi- 
leged from  capture  as  such,  but  one  employed  in  a  commer- 
cial enterprise  for  the  personal  profit  of  the  charterer,  and 
only  secondarily,  if  at  all,  for  the  purpose  of  humanity. 
Her  enterprise  was  an  unlawful  one,  in  case  a  blockade 
existed,  and  both  Solis  and  the  master  of  the  Adula  were 
cognizant  of  this  fact.  The  direction  of  the  commanding 
officer  of  the  Vixen,  which  overhauled  the  Adula  off 
Guantanamo,  to  enter  the  harbor,  cannot  be  construed  as 
a  permission  to  violate  the  blockade,  as  such  permission 


121 

would  not  be  within  the  scope  of  his  authority.  T/>< 
Hope,  1  Dod.  226;  The  Amado,  Newb.  400;  The  Joseph, 
8  Cr.  451 ;  The  Benito  Estenger,  post,  568. 

That  upon  arrival  off  Santiago  the  blockading  fleet  was 
plainly  visible,  and  we  think  there  is  a  preponderance  of 
evidence  to  the  effect  that  both  Solis  and  the  master  of  the 
Adula  knew  of  the  actual  blockade,  that  it  was  generally 
known  in  Kingston  before  she  sailed,  and  that  the  Adula  was 
chargeable  with  a  breach  of  it,  notwithstanding  the  letter 
of  instructions  from  Mr.  Forwood  to  Captain  Yeates.  As 
the  blockade  had  been  in  existence  since  June  7,  it  is 
scarcely  possible  that,  in  the  three  weeks  that  elapsed  be- 
fore the  Adula  sailed,  it  should  not  have  been  known  in 
Kingston,  which  is  only  a  day's  trip  from  the  southern 
coast  of  Cuba,  and  with  which  it  appears  to  have  been  in 
frequent  communication.  This  probability  is  confirmed  by 
the  direct  testimony  of  the  sailor  Morris,  that  it  was  mat- 
ter of  common  talk  in  Kingston.  The  testimony  of  Solis, 
that  he  did  not  know  "  official ly"  that  Guantanamo  was 
blockaded,  by  which  we  are  to  understand  that  it  had  not 
been  officially  proclaimed,  is  perfectly  consistent  with  a 
personal  knowledge  of  the  actual  fact.  His  statement 

seems  to  be  little  more  than  a  convenient  evasion.     Upon    Knowledge  <>f 

.  11.,  iii    Solis  was  ™owl- 

the  principle  already  stated  his  knowledge  was  the  knowl-  «'<Jge  of  the  ship. 

edge  of  the  ship. 

We  think  the  facts  herein  stated  outweigh  the  general 
statement  of  the  officers  that  they  had  not  heard  of  the 
blockade. 

3.  There  was  no  error  in  denying  the  motion  of  the 
claimant  to  take  further  proofs.  It  appears  from  the 
opinion  of  the  court  that  "the  hearing  upon  the  proceed- 
ings for  condemnation  was  upon  the  evidence  afforded  by 
the  examination  of  the  captured  crewr  taken  upon  standing 
interrogatories,  the  ship's  papers,  and  other  evidence  of 
a  documentary  character  found  upon  the  ship  by  the 
captors.  This  was  done  in  conformity  to  the  established 
rule  in  prize  causes." 

The  motion  to  take  further  proof  was  made  upon  the 
affidavit  of  Robert  Gemmell,  the  New  York  agent  of  the 
company,  the  statement  of  W.  P.  Forwood,  the  Kingston 
agent,  annexed  thereto,  as  well  as  his  own  affidavit  and 
exhibits,  and  upon  the  counter  testimony  of  Anderson, 
Ellen  berg  and  Gill  taken  de  hens  esse.  Upon  the  hearing 
of  this  motion  the  court  considered  the  allegations  of  For- 
wood, attached  to  Gemmell's  affidavit,  as  if  Forwood  had 


122 

testified  upon  depositions  regularly  taken,  giving  due 
weight  to  the  same  in  connection  with  other  evidence  in 
the  case;  and  was  of  opinion  that  the  evidence  as  it  stood 
was  not  susceptible  of  any  satisfactory  explanation;  and 
comparing  the  proof  proposed  to  be  brought  forward  with 
that  already  in  the  case,  came  to  the  conclusion  that  the 
legal  effect  of  the  facts  before  the  court  could  not  be  varied 
by  the  explanation  offered.  The  motion  was  denied.  In 
considering  this  case  we  have  also  given  effect  to  these 
affidavits,  and  have  come  to  the  conclusion  that,  if  they 
are  to  be  taken  as  true,  and  the  further  proofs,  if  taken, 
would  support  them,  they  would  not  change  our  opinion 
with  respect  to  the  affirmance  of  the  decree. 

order  for  fur-  If  an  examination  of  the  ship's  papers  and  of  the  crew, 
waeyspma°de1with  taken  in preparatorio ,  upon  which  the  cause  is  first  heard 
tion.rei  "in  the  District  Court,  make  a  case  for  condemnation,  the 
order  for  further  proof  is,  as  stated  in  TJie  Gray  Jacket, 
5  Wall.  342,  368,  always  made  with  extreme  caution,  and 
only  where  the  interests  of  justice  clearly  require  it.  If 
the  ship's  papers  and  the  testimony  of  the  crew  do  not 
justify  an  acquittal,  it  is  improbable  that  a  defence  would 
be  established  b}7  further  proof;  and  as  the  interest  of  all 
parties  require  that  prize  causes  be  quickly  disposed  of, 
it  is  only  where  the  testimony  in  preparatorio  makes  a 
case  of  grave  doubt,  that  the  court  orders  the  taking  of 
further  proofs.  The  Pizarro,  2  Wheat.  227;  The  Amiable 
Isabella,  6  Wheat.  1,  77;  Benedict's  Adm'y,  sec.  512  a\ 
Story  on  Prize  Courts,  17. 

sir  wniiam  It  was  said  b}T  Sir  William  Scott  in  The  /Sarah,  3  C.  Rob. 
ing  of  "further  330,  that  "it  has  seldom  been  done  except  in  cases  where 
there  has  appeared  something  in  the  original  evidence, 
which  lays  a  suggestion  for  prosecuting  the  inquiiy 
farther.  In  such  case  the  court  has  allowed  it;  but  when 
the  matter  is  foreign,  and  not  connected  with  the  original 
evidence  of  the  cause,  it  must  be  under  very  peculiar  cir- 
cumstances indeed  that  the  court  will  be  induced  to  accede 
to  such  an  application;  because,  if  remote  suggestions  were 
allowed,  the  practice  of  the  court  would  be  led  away  from 
the  simplicity  of  prize  proceedings,  and  there  would  be 
no  end  to  the  accumulation  of  proof  that  would  be  intro- 
duced in  order  to  support  arbitrary  suggestions." 

These  remarks  are  specially  pertinent  to  the  offer  of 
further  proof  that,  while  Solis  owed  allegiance  to  the 
Queen  of  Spain,  yet,  that  he  left  Cuba  soon  after  the  war 
broke  out,  took  no  part  in  the  hostilities,  but  on  the  con- 


123 

trary  had  done  all  in  his  power  while  he  remained  in  Cuba 
to  assist  citizens  of  the  United  States  residing  there;  had 
sided  with  the  natives  of  Cuba,  and  was  desirous  that  a 
government  should  be  established  in  the  island  under  the 
auspices  of  the  United  States.  As  was  observed  in  the 
very  satisfactory  opinion  of  the  District  Judge  in  this 
case,  this  evidence  was  altogether  irrelevant  to  the  case  of 
the  Adula,  and  was,  to  a  certain  extent,  a  contradiction  of 
his  testimony  before  the  prize  commissioners  that  he  was 
a  loyal  subject  of  Spain,  bore  a  Spanish  passport,  and 
carried  a  bill  of  health  vised  by  the  Spanish  consul  at 
Kingston.  It  would  throw  the  whole  practice  in  prize 
cases  into  confusion  if  the  testimony,  taken  in  prepara- 
torio,  when  the  facts  are  fresh  in  the  minds  of  the  wit- 
nesses, were  subject  to  be  contradicted  by  the  same  wit- 
nesses after  its  weak  points  had  been  developed.  It  was 
said  by  Mr.  Justice  Story  in  The  Pizarro  2  Wheat.  227:  story  on  re 

J  »  .  animation. 

"  Nor  should  the  captured  crew  have  been  permitted  to  be 
reexamined  in  court.  They  are  bound  to  declare  the  whole 
truth  upon  the  first  examination;  and  if  they  fraudulently 
suppress  any  material  facts,  they  ought  not  to  be  indulged 
with  an  opportunity  to  disclose  what  they  please,  or  to 
give  color  to  their  former  statements  after  counsel  has 
been  taken,  and  they  know  the  pressure  of  the  cause. 
Public  policy  and  justice  equall}1"  point  out  the  necessity 
of  an  inflexible  adherence  to  this  rule." 

Upon  the  whole,  we  think  the  decree  of  the  District    Judgment. 
Court  was  correct,  and  it  is  therefore 

Affirmed. 

MR.  JUSTICE  SHIRAS,  with  whom  concurred  MR.  JUS- 
TICE GRAY,  MR.  JUSTICE  WHITE  and  MR.  JUSTICE  PECK- 
HAM,  dissenting. 


CASE  OF  THE  PANAMA. 

(Vol.  176,  United  States  Reports,  p.  535.    Decided  February  26,  1900.) 

MR.  JUSTICE  GRAY  delivered  the  opinion  of  the  court. 

This  was  a  libel  for  the  condemnation  of  the  steamship  statement  of 
Panama  as  prize  of  war,  and  was  heard  in  the  District 
Court  upon  the  libel,  the  claim  of  the  master  in  behalf  of 
the  owner  of  the  vessel,  and  the  depositions  in  prepara- 
torio  of  her  master,  her  supercargo,  and  her  chief  engi- 
neer, which  showed  the  following  state  of  facts: 


124 

The  Panama  was  a  steamship  of  1432  tons  register;  was 
owned  by  the  Compania  Transatlantica,  a  corporation  of 
Barcelona  in  Spain;  sailed  under  the  Spanish  flag;  had  a 
commission  as  a  royal  mail  ship  from  the  Government  of 
Spain;  carried  a  crew  of  Tl  men  all  told,  who  had  been 
shipped  at  different  times  at  Havana;  and  her  usual  course 
of  voyage  included  the  ports  of  New  York  and  Havana^ 
and  Progreso,  Vera  Cruz  and  other  Mexican  ports,  with 
general  cargoes,  passengers  and  mails. 

Her  last  voyage  began  in  Havana,  for  a  round  trip  by 
way  of  New  York,  and  was  to  have  ended  in  Vera  Cruz. 
She  sailed  from  New  York  at  half  past  two  o'clock  in  the 
afternoon  of  April  20,  1898,  with  a  clearance  from  the 
custom-house  at  that  port  for  Havana,  Progreso,  and  Vera 
Cruz,  having  on  board  the  United  States  mails,  29  passen- 
gers (all  Spaniards  except  one  Frenchman)  and  a  general 
cargo,  the  produce  or  manufacture  of  the  United  States, 
shipped  at  New  York,  and  to  he  delivered,  at  the  risk  of 
the  shippers,  to  consignees  at  those  ports.  She  pursued 
the  usual  course  of  ships  bound  southward  along  the  coast 
until  she  passed  Alligator  Reef  light  on  the  coast  of  Florida, 
and  then  bore  away  for  Havana,  and  sighted  the  Cuban 
coast  x)n  the  morning  of  April  25;  and  on  that  day,  when 
about  twenty- five  miles  from  Havana,  was  captured  by 
the  United  States  ship  of  war  Mangrove,  and  was  sent  in 
charge  of  a  prize  crew  into  Key  West.  She  had  no  mili- 
tary or  naval  officer  on  board,  made  no  resistance  to  the 
capture,  and  delivered  all  her  papers  and  mails  to  the  prize 
master. 
Armament  of  There  were  mounted  on  board  the  Panama,  at  the  time 

the  Panama  car-  €  , 

rii-d  in  accord- of  her  capture,  five  guns:  Two  breech-loading  Hontoria  9 

ab.ce  with  a  con-  .  °  i          i  . 

tmct  with  the  centimetre  guns,  one  on  each  side  of  the  ship,  with  30 

Spanish  Govern-  .  . 

ment.  rounds  of  shot  for  each;  one  Maxim  rapid-nnng  gun,  on 

the  bridge,  with  ammunition;  and  two  signal  guns,  one  on 
each  side  of  the  pilot  house,  with  ammunition.  She  also 
had  on  board  about  twenty  Remington  rifles  and  ten 
Mauser  rifles,  with  ammunition  for  each,  and  about  thirty 
or  forty  cutlasses.  The  cannon  had  been  put  on  board 
about  three  years  before,  and  the  small  arms  arid  ammu- 
nition had  been  on  board  a  year  or  more.  She  was  so 
armed  in  accordance  with  a  contract  with  the  Spanish 
Government,  which  required  all  the  mail  steamships  of 
the  company  to  be  armed,  and  article  26  of  which  was  as 
follows:  "Every  ship  shall  take  on  board,  for  her  own 
defence,  the  following  armament:  Two  Hontoria  9  centi- 


125 

metre  guns,  with  powder  and  ammunition  for  30  shots  for 
each  piece;  twenty  Remington  rifles,  with  100  rounds 
apiece,  and  bayonet  or  sword-ba}7onet;  and  twenty  cut- 
lasses." 

The  master  of  the  Panama  moved  the  court  to  allow 
further  proof  upon  the  matters  set  forth  in  two  test  affi- 
davits, filed  by  leave  of  the  court,  in  which  he  testified 
more  distinctly  that  the  mounted  guns  and  small  arms 
which  the  Panama  carried  had  not  been  shipped  for  the 
purpose  of  war,  or  in  expectation  of  hostilities  between 
the  Spanish  Government  and  the  United  States,  but  were 
taken  on  board  pursuant  to  the  requirements  of  that  con- 
tract; and  also  testified  that  the  Spanish  Government  had 
never  taken  possession  of  the  Panama  under  the  terms  of 
the  contract;  and  that  until  the  capture  he  and  his  officers 
were  ignorant  of  the  existence  of  the  war  between  Spain 
and  the  United  States,  and  of  any  blockade  of  the  port  of 
Havana.  And  he  asked  leave  to  submit  to  the  court  the  whole 
contract,  as  contained  in  a  printed  book,  which  was  in  the 
chart  room  of  the  Panama,  and  in  the  custody  of  the  prize 
master,  and  which  he  has  since  sent  up  to  this  court  as 
one  of  the  exhibits  in  the  cause. 

By  that  contract,  concluded  between  the  Spanish  Gov-  contract  co  i- 
ernment  and  the  Compania  Transatlantica  on  November  c' 
18,  1886,  and  drawn  up  and  printed  in  Spanish,  the  com- 
pany bound  itself  to  establish  and  to  maintain  for  twenty 
years  various  lines  of  mail  steamships,  one  of  which 
included  Havana,  New  York  and  other  ports  of  the 
United  States  and  of  Mexico;  and  the  Spanish  Government 
agreed  to  pay  certain  subsidies  to  this  company,  and  not 
to  subsidize  other  steamship  lines  between  the  same  points. 
Among  the  provisions  of  the  contract,  besides  article  26, 
above  quoted,  were  the  following: 

By  article  25  new  ships  of  the  West  Indian  line  must  Terms  of  the 
be  of  iron,  or  of  the  material  which  experience  may  prove00 
to  be  the  best;  must  have  double-bottomed  hulls,  divided 
into  water-tight  compartments,  with  all  the  latest  improve- 
ments known  to  the  art  of  naval  construction;  and  u their 
deck  and  sides  shall  have  the  necessary  strength  to  support 
the  artillery  that  they  are  to  mount."  All  the  ships  of  that 
line  must  have  a  capacity  for  500  enlisted  men  on  the  orlop 
deck,  and  a  convenient  place  for  them  on  the  main  deck. 
The  company,  when  beginning  to  build  a  new  ship,  shall 
submit  to  tho  Minister  of  the  Colonies  her  plans  as  prepared 
for  commercial  and  postal  service;  ''the  Minister  shall 


126 

contrac-t  ot  the  cause  t°  be  studied  the  measures  that  should  be  taken 
looking  to  the  rapid  mounting  in  time  of  war  of  pieces  of 
artillery  on  board  of  said  vessel;  and  may  compel  the 
company  to  do  such  strengthening  of  the  hull  as  he  may 
deem  necessary  for  the  possible  mounting  of  that  artil- 
lery; said  strengthening  shall  not  be  required  fora  greater 
number  than  six  pieces  whose  weight  and  whose  force  of 
recoil  do  not  exceed  those  of  a  piece  of  fourteen  centimetres." 
The  plans  of  ships  already  built  shall  be  submitted  to  the 
Minister  of  Marine,  in  order  that  he  ma}'  cause  to  be 
studied  the  measures  necessary  to  adapt  them  to  war  serv- 
ice; and  any  changes  that  he  may  deem  necessary  or  pos- 
sible for  that  end  shall  be  made  by  the  company.  But  in 
both  old  and  new  ships  the  changes  proposed  by  the  Min- 
istry must  be  such  as  not  to  prejudice  the  commercial 
purposes  of  the  vessels. 

By  article  35,  the  vessels,  with  their  engines,  arma- 
ments and  other  appurtenances,  must  be  constantly  main- 
tained in  good  condition  for  service. 

By  article  41,  the  officers  and  crews  of  the  vessels,  and, 
as  far  as  possible,  the  engineers,  shall  be  Spaniards. 

By  article  49,  the  company  may  employ  its  vessels  in 
the  transportation  of  all  classes  of  passengers  and  mer- 
chandise, and  engage  in  all  commercial  operations  that 
will  not  prejudice  the  service  that  it  must  render  to  the 
state. 

By  article  60,  when  by  order  of  the  Government  muni- 
tions of  war  shall  be  taken  on  board,  the  company  may 
require  that  it  shall  be  done  in  the  manner  and  with  the 
precautions  necessary  to  avoid  explosions  and  disasters. 

By  article  64,  in  case  of  the  suspension  of  the  mail 
service  by  a  naval  war,  or  by  hostilities  in  any  of  the  seas 
or  ports  visited  by  the  company's  ship,  the  Government 
may  take  possession  of  them  with  their  equipment  and 
supplies,  having  a  valuation  of  the  whole  made  by  a  com- 
mission composed  of  two  persons  selected  by  the  Govern- 
ment, two  by  the  company,  and  a  fifth  person  chosen  by 
those  four;  at  the  termination  of  the  war,  the  vessels 
with  their  equipment  are  to  be  returned  to  the  company, 
and  the  Government  is  to  pay  to  the  company  an  indem- 
nity for  any  diminution  in  their  value,  according  to  the 
opinion  of  the  commission,  and  is  also,  for  the  time  it  has 
the  vessels  in  its  service,  to  pay  five  per  cent  on  the  val- 
uation aforesaid.  By  article  66,  at  the  end  of  the  war,  the 
Government  may  relieve  the  company  of  the  performance 


127 

of  the  contract  if  the  casualties  of  the  war  have  disabled  C0nt™|  of  the 
it  from  continuing  the  service.  And  by  article  67,  in 
extraordinary  political  circumstances,  and  though  there  be 
no  naval  war,  the  Government  may  charter  one  or  more 
of  the  company's  vessels,  and  in  that  event  shall  pay  an 
indemnity  estimated  by  the  aforesaid  commission. 

The  District  Court  denied  the  motion  of  the  master  to 
take  further  proof;  restored  parts  of  the  cargo  to  claim- 
ants thereof;  gave  claimants  of  other  parts  of  the  cargo 
leave  to  introduce  further  proof;  and  entered  a  final 
decree  of  condemnation  and  sale  of  the  Panama  and  the 
rest  of  her  cargo,  upon  the  ground  that  she  was  enemy's 
property,  and  was  upon  the  high  seas  at  the  time  of  the 
President's  proclamation  exempting  certain  vessels  from 
arrest.  87  Fed.  Rep.  927.  The  court  also,  on  the  appli- 
cation of  the  commodore  commanding  at  Key  West,  and 
on  the  recommendation  of  the  prize  commissioners, 
ordered  all  the  mounted  guns  and  the  ammunition  there- 
for to  be  appraised  by  two  officers  of  the  Navy,  and  deliv- 
ered to  the  commodore  for  the  use  of  the  Navy  Depart- 
ment. The  master  of  the  Panama  appealed  to  this  court 
from  the  decree  condemning  the  vessel. 

The  recent  war  with  Spain,  as  declared  by  the  act  of    certain  arti- 
Congress  of  April  25,  1898,  c.  189,  and  recognized  in  the  de1u'°prociama- 
President's  proclamation  of  April  26, 1898,  existed  on  andlsg".  ° 
after  April  21,  1898.     30  Stat.  364,  1770.     This  proclama- 
tion declared,  among  the  rules  on  which  the  war  would  be 
conducted,  the  following: 

"4.  Spanish  merchant  vessels,  in  any  ports  or  places 
within  the  United  States,  shall  be  allowed  till  May  21, 
1898,  inclusive,  for  loading  their  cargoes  and  departing 
from  such  ports  or  places;  and  such  Spanish  merchant 
vessels,  if  met  at  sea  by  any  United  States  ship,  shall  be 
permitted  to  continue  their  voyage  if,  on  examination  of 
their  papers,  it  shall  appear  that  their  cargoes  were  taken 
on  board  before  the  expiration  of  the  above  term;  Pro- 
vided, that  nothing  herein  contained  shall  apply  to  Spanish 
vessels  having  on  board  any  officer  in  the  military  or  naval 
service  of  the  enemy,  or  any  coal  (except  such  as  may  be 
necessary  for  their  voyage)  or  any  other  article  prohibited 
or  contraband  of  war,  or  any  dispatch  of  or  to  the  Spanish 
government." 

"6.  The  right  of  search  is  to  be  exercised  with  strict 
regard  for  the  rights  of  neutrals,  and  the  voyages  of  mail 
steamers  are  not  to  be  interfered  with  except  on  the 


128 

clearest  grounds  of  suspicion  of  a  violation  of  law  in 
respect  of  contraband  or  blockade.'' 

Decision  in  the      It  has  been  decided  b}T  this  court,  in  the  recent  case  of 
vessels  sailing  27ie  Bucna  Ventura.*1  175  IT.  S.  384,  that  a  Spanish  mer- 

before     w  H,  r 

began.  chant  vessel,  which  had  sailed  before  April  21,  1898,  from 

a  port  of  the  United  States  on  a  voyage  to  a  foreign  port, 
not  having  on  board  any  officer  in  the  militaiy  or  naval 
service  of  Spain,  nor  any  article  contraband  of  war,  nor 
any  dispatch  of  or  to  the  Spanish  Government,  was  pro- 
tected by  the  fourth  clause  of  the  President's  proclamation 
of  April  26,  1898,  from  condemnation  while  on  that  voy- 
age; but  that  her  capture,  before  that  proclamation  was 
issued,  was  with  probable  cause;  and  that  she  should 
therefore  be  ordered  to  be  restored  to  her  owner,  but 
without  damages  or  costs. 

That  case  would  be  decisive  of  this  one,  but  for  the 
mails  and  the  arms  carried  by  the  Panama,  and  the  con- 
tract with  the  Spanish  Government  under  which  the  arms 
were  put  on  board. 

It  was  argued  in  behalf  of  the  claimant  that,  inde- 
pendently of  her  being  a  merchant  vessel,  she  was  exempt 
from  capture  by  reason  of  her  being  a  mail  steamship  and 
actually  carrying  mail  of  the  United  States. 

NO  interna-     There  are  instances  in  modern  times,  in  which  two  na- 
tional   rule   ex- 


empts mail  ships  tionS,  by  convention  between  themselves,  have  made  spe- 

irom  capture.  J  .... 

cial  agreements  concerning  mail  ships.  But  international 
agreements  for  the  immunity  of  -the  mail  ships  of  the  con- 
tracting parties  in  case  of  war  between  them  have  never. 
we  believe,  gone  further  than  to  provide,  as  in  the  postal 
convention  between  the  United  States  and  Great  Britain 
in  1848,  in  that  between  Great  Britain  and  France  in  1833, 
and  in  other  similar  conventions,  that  the  mail  packets  of 
the  two  nations  shall  continue  their  navigation,  without 
impediment  or  molestation,  until  a  notification  from  one 
of  the  governments  to  the  other  that  the  service  is  to  be 
discontinued;  in  which  case  the}T  shall  be  permitted  to 
return  freely,  and  under  special  protection,  to  their  re- 
spective ports.  And  the  writers  on  international  law  con- 
cur in  affirming  that  no  provision  for  the  immunity  of 
mail  ships  from  capture  has  as  j7et  been  adopted  by  such 
a  general  consent  of  civilized  nations  as  to  constitute  a 
rule  of  international  law.  9  Stat.  969;  Wheaton,  (8th  ed.) 
pp.  659-661,  Dana's  note;  Calvo,  (5th  ed.)  §§  23T8,  2809; 
De  Boeck,  §§  207,  208.  De  Boeck,  in  §  208,  after  observ- 

«See  page  70,  preceding. 


129 

ing  that,  in  the  case  of  mail  packets  between  belligerent 
countries,  it  .seems  difficult  to  go  further  than  in  the  con- 
vention of  1833,  above  mentioned,  proceeds  to  discuss  the 
case  of  mail  packets  between  a  belligerent  and  a  neutral 
country,  as  follows:  "It  goes  without  saying  that  each 
belligerent  may  stop  the  departure  of  its  own  mail  pack- 
ets. But  can  either  intercept  enemy  mail  packets  ?  There 
can  be  no  question  of  intercepting  neutral  packets,  because 
communications  between  neutrals  and  belligerents  are  law- 
ful, in  principle,  saving  the  restrictions  relating  to  block- 
ade, to  contraband  of  war,  and  the  like;  the  right  of  search 
furnishes  belligerents  with  a  sufficient  means  of  control. 
But  there  is  no  doubt  that  it  is  possible,  according  to 
existing  practice,  to  intercept,  and  seize  the  enemy's  mail 
packet?." 

The  provision  of  the  sixth  clause  of  the  President's 
proclamation  of  April  26,  1898,  relating  to  interference 
with  the  voyages  of  mail  steamships,  appears  by  the  con- 
text to  apply  to  neutral  vessels  onhr,  and  not  to  restrict  in 
any  degree  (he  authority  of  the  United  States,  or  of  their 
naval  officers,  to  search  and  seize  vessels  carrying  the  mails 
between  the  United  States  and  the  enenry's  countiy.  Nor 
can  the  autliorit}7  to  do  so,  in  time  of  war,  be  affected  by 
the  facts  that  before  the  war  a  collector  of  customs  had 
granted  a  clearance,  and  a  postmaster  had  put  mails  on 
board,  for  a  port  which  was  not  then,  but  has  since  become, 
enemy's  country.  Moreover,  at  the  time  of  the  capture 
of  the  Panama,  this  proclamation  had  not  been  issued. 
Without  an  express  order  of  the  Government,  a  merchant  gov^rifm  era 
vessel  is  not  privileged  from  search  or  seizure  by  the  factonfy  by6 express 
that  it  has  a  government  mail  on  board.  The  Peterhoff,  ernment. 
o  Wall.  28,  61. 

The  mere  fact,  therefore,  that  the  Panama  was  a  mail 
steamship,  or  that  she  carried  mail  of  the  United  States  on 
this  voyage,  does  not  afford  any  ground  for  exempting 
her  from  capture. 

The  remaining  question  in  the  case  is  whether  the  Pan-    status  of  ,tbe 

Panama  under 

ama  came  within  the  class  of  vessels  described   in  the fourth  clause- 
fourth  clause  of  the  President's  proclamation  of  April  26, 
1898,  as  "Spanish  merchant  vessels,"  and  as  not  "Span- 
ish vessels  having  on  board  any  officer  in  the  militar}^  or 
naval  service  of  the  enemy,  or  any  coal  (except  such  as 
may  be  necessary  for  their  voyage)  or  any  other  article 
prohibited  or  contraband  of  war,  or  any  dispatch  of  or  to 
the  Spanish  government." 
2056—04 9 


130 


dist?rrcuonabe-  ^n  tne  Part  °^  tne  claimant,  it  was  argued  that  the  arms 
and  w^ich  the  Panama  carried,  under  the  requirements  of  her 
contract  and  for  the  protection  of  the  mails,  are  not 
to  be  regarded  as  contraband  or  munitions  of  war,  within 
the  sense  of  this  clause;  that  ;i  contraband,"  as  therein 
referred  to,  means  contraband  cargo,  not  contraband  por- 
tion of  the  ship's  permanent  equipment;  and  that,  if  the 
furnishings  of  a  ship  could  be  regarded  as  contraband, 
every  ship  would  have  contraband  on  board. 

On  the  other  hand,  it  was  contended,  in  support  of  the 
condemnation,  that  the  arms  which  the  Panama  carried, 
belonging  to  her  owner,  were  contraband  of  war,  arid  ren- 
dered her  liable  to  capture;  and  that  by  reason  of  her 
being  so  armed,  and  of  the  provisions  of  her  mail  contract 
with  the  Spanish  government,  requiring  her  armament, 
and  recognizing  the  right  of  that  government,  in  case  of 
a  suspension  of  the  mail  service  by  war,  to  take  possession 
of  her  for  warlike  purposes,  she  can  not  be  considered  as 
a  merchant  vessel,  within  the  meaning  of  the  proclama- 
tion, but  must  be  treated  like  any  regular  vessel  of  the 
Spanish  navy  under  similar  circumstances. 

The  ptgou  or  The  claimant  much  relied  on  a  case  decided  in  1800  by 
the  French  Council  of  Prizes,  in  accordance  with  the 
opinion  and  report  of  Portalis,  himself  a  high  authority. 
Wheaton,  (8th  ed.)  p.  460;  De  Boeck,  §  81.  In  the  case 
referred  to,  an  American  vessel,  carrying  ten  cannon  of 
various  sizes,  together  with  muskets  and  munitions  of  war, 
had  been  captured  by  French  frigates;  and  had  been  con- 
demned by  two  inferior  French  tribunals,  upon  the  ground 
that  she  was  armed  for  war,  and  had  no  commission  or 
authorit}7  from  her  own  government.  The  claimants  con- 
tended that  their  ship,  being  bound  for  India,  was  armed 
for  her  own  defence,  and  that  the  munitions  of  war,  the 
muskets  and  the  cannon  that  composed  her  armament  did 
not  exceed  what  was  usual  in  like  cases  for  long  vo\rages. 
Upon  this  point,  Portalis,  acting  as  commissioner  of  the 
French  government,  reported  his  conclusion  on  the  ques- 
tion of  armament  as  follows:  "For  my  part,  I  do  not 
think  it  is  enough  to  have  or  to  carry  arms,  to  incur  the 
reproach  of  being  armed  for  war.  Armament  for  v  ar  is 
of  a  purely  offensive  nature.  It  is  established  when  there 
is  no  other  object  in  the  armament  than  that  of  attack,  or, 
at  least,  when  everything  shows  that  such  is  the  principal 
object  of  the  enterprise;  then  a  vessel  is  deemed  enemy  or 
pirate,  if  she  has  no  commission  or  papers  sufficient  to 


131 

remove  all  suspicion.  But  defence  is  a  natural  right,  and 
means  of  defence  are  lawful  in  voyages  at  sea,  as  in  all 
other  dangerous  occupations  of  life.  A  ship  which  had 
but  a  small  crew,  and  a  considerable  cargo,  was  evidently 
intended  for  commerce,  and  not  for  war.  The  arms  found 
on  this  ship  were  evidently  intended,  hot  for  committing 
acts  of  rapine  or  hostility,  but  for  preventing  them;  not 
for  attack,  but  for  self-defence.  The  pretext  of  being 
armed  for  war  therefore  appears  to  me  to  be  unfounded." 
The  Council  of  Prizes,  upon  consideration  of  the  report 
of  Portalis,  adjudged  that  the  capture  of  the  vessel  and 
her  cargo  was  null  and  void,  and  ordered  them  to  be 
restored,  with  damages.  The  Pegou  or  Pigou,  2  Pistoye 
et  Duverdy,  Prises  Maritimes,  51;  S.  C.  2  Cranch,  96-98, 
and  note. 

But  in  that  case  the  only  question  at  issue  was  whether 
a  neutral  merchant  vessel,  carrying  arms  solely  for  her  enemy,  vessel. 
own  defence,  was  liable  to  capture  for  want  of  a  commis- 
sion as  a  vessel  of  war  or  privateer.  That  the  capture 
took  place  while  there  was  no  state  of  war  between  France 
and  the  United  States  is  shown  by  her  being  treated, 
throughout  the  case,  as  a  neutral  vessel;  if  she  had  been 
enemy's  propeilr,  she  would  have  been  lawful  prize,  even 
if  she  had  a  commission,  or  if  she  were  unarmed.  She 
was  not  eneim''s  property,  nor  in  the  enemy's  possession, 
nor  bound  to  a  port  of  the  enemy;  nor  had  her  owner  made 
any  contract  with  the  enemy  by  which  the  enemy  was,  or 
would  be,  under  any  circumstances,  entitled  to  take  and 
use  her,  either  for  war,  or  for  any  other  purpose. 

Generally  speaking,  arms  and  ammunition  arecontraband  Arms  and  am- 
of  war.  In  77<e  Feterltoff,  5  Wall.  28,  Chief  Justice  Chase,  generally  con- 
deli  voring  the  judgment  of  this  court,  said:  "The  classifi- 
cation of  goods  as  contraband  or  not  contraband  has  much 
perplexed  text-writers  and  jurists.  A  strictty  accurate 
and  satisfactory  classification  is  perhaps  impracticable;  but 
that  which  is  best  supported  by  American  and  English 
decisions  may  be  said  to  divide  all  merchandise  into  three 
classes.  Of  those  classes,  the  first  consists  of  articles 
manufactured,  and  primarily  and  ordinarih*  used,  for  mili- 
tary purposes  in  time  of  war;  the  second,  of  articles  which 
may  be  and  are  used  for  purposes  of  war  or  peace, 
according  to  circumstances;  and  the  third,  of  articles 
exclusively  used  for  peaceful  purposes.  Merchandise  of 
the  first  class,  destined  to  a  belligerent  country  or  places 
occupied  by  the  army  or  navy  of  a  belligerent,  is  always 


132 

contraband;  merchandise  of  the  second  class  is  contraband 
only  when  actually  destined  to  the  military  or  naval  use  of 
a  belligerent;  while  merchandise  of  the  third  class  is  not 
contraband  at  all,  though  liable  to  seizure  and  condemna- 
tion for  violation  of  blockade  or  siege."  And  it  was 
adjudged  that  so  much  of  the  cargo  of  the  Peterhoff,  as 
consisted  of  artillery  harness,  artillery  boots,  and  army 
shoes  and  blankets,  came  fairly  under  the  description  of 
goods  primarily  and  ordinarily  used  for  military  purposes 
in  time  of  war;  and,  being  destined  directly  for  the  use 
of  the  rebel  military  service,  came  within  the  second,  if 
not  within  the  first  class  of  goods  contraband  of  war.  5 
Wall.  58. 
But  not  when  Yet  itlnust  be  admitted  that  arms  and  ammunition  are 

kept  on  board  for 

defence  against  not  contraband  ot  war,  when  taken  and  kept  on  board  a 

"enemies,  pi- 
rates, and  assail- merchant  vessel  as  part  or  her  equipment,  and  solely  for 
ing  thieves." 

her  defence  against  "enemies,  pirates,  and  assailing 
thieves,"  according  to  the  ancient  phrase  still  retained  in 
policies  of  marine  insurance.  Pratt,  in  his  essa}^  on  the 
Law  of  Contraband  of  War,  speaking  of  the  class  of 
"articles  which  are  of  direct  use  in  war,"  says:  "With 
respect  to  these  no  question  can  arise.  On  proof  of  the  use 
of  the  article  being  solely  or  particularly  applicable  to 
hostile  purposes,  the  conveyance  of  it  to  the  enemy  would 
amount  to  such  a  direct  interposition  in  the  war  as  neces- 
sarily to  entail  the  confiscation  of  the  propert}7."  But  he 
afterwards  adds  this  qualification:  "But  even  in  the  case 
of  articles  of  direct  use  in  war,  an  exception  is  always 
made  in  favor  of  such  a  quantity  of  them  as  may  be  sup- 
posed to  be  necessary  for  the  use  or  defence  of  the  ship." 
And  again,  speaking  of  "  warlike  stores,"  he  sa3rs:  "These 
are,  from  their  very  nature,  evidently  contraband;  but 
every  vessel  is,  of  course,  allowed  to  carry  such  a  quantity 
as  may  be  necessar}7  for  purposes  of  defence;  this  pro- 
vision is  expressly  introduced  in  many  treaties."  Pratt, 
Contraband  of  War,  xxii.  xxv,  xl.  And  at  pages  23'.). 
244,  245  of  his  appendix  he  quotes  express  provisions  to 
that  effect  in  the  treaties  between  Great  Britain  and  Russia 
in  1766,  1797  and  1801.  See  also  Cases  of  Dutch  and 
Spanish  /Skips,  6  C.  Rob.  48;  The  Happy  Couple,  Stewart 
Adm.  (Nova  Scotia)  65,  69;  Madison,  quoted  in  3  Whart. 
Int.  Law  Dig.  §  368,  p.  313. 
Arms  for  de-  gut,  the  fact  that  arms  carried  by  a  merchant  vessel 

fence    not    con-  * 

elusive  evidence  were  originally  taken  on  board  for  her  own  defence  is  not 

of  character.  . 

conclusive  as  to  her  character.     This  is  clearly  shown  by 


133 

the  case  of  The  An«r«i.  (1801)  reported  by  the  name  of  ThcAuuMa. 
Talbot  v.  Seeman,)  1  Cranch,  1.  In  that  case,  during  the 
naval  warfare  between  the  United  States  and  France  near 
the  end  of  the  last  century,  a  neutral  merchant  vessel, 
having  eight  iron  cannon  and  eight  wooden  guns  mounted 
on  board,  and  a  cargo  of  merchandise,  sailed  from  Calcutta 
for  Hamburg,  both  being  neutral  ports;  and  before  reach- 
ing her  destination  was  captured  by  a  French  cruiser,  and 
put  by  her  captors,  with  the  cannon  still  on  board,  in 
charge  of  a  French  prize  crew,  with  directions  to  take  her 
into  a  French  port  for  adjudication  as  prize;  and  on  her 
way  thither  was  recaptured  by  a  United  States  ship  of 
war.  The  recapture  was  held  to  be  lawful,  and  to  entitle 
the  recaptors  to  salvage  before  restoring  the  vessel  to  her 
neutral  owner,  because,  as  Chief  Justice  Marshall  said, 
'*  The  Amelia  was  an  armed  vessel  commanded  and  manned 
by  Frenchmen,"  ''.she  was  an  armed  vessel  under  French 
authority,  and  in  a  condition  to  annoy  the  American  com- 
merce." 1  Cranch,  32.  And  in  The  Charming  Betxy, 
(1804)  2  Cranch,  64,  that  case  was  express!}7  approved,  as 
a  precedent  to  be  followed  under  similar  circumstances; 
but  was  held  to  be  inapplicable  where  the  arms  on  board 
at  the  time  of  the  recapture  were  but  a  single  musket  and 
a  small  amount  of  powder,  and  ball.  2  Cranch,  121. 
Notwithstanding  that  the  Amelia  was  a  neutral  vessel, 
with  an  armament  original ly  taken  on  board  for  defence 
only,  and  therefore,  while  in  the  possession  of  her  neutral 
owner,  would  not  (according  to  the  French  case  above 
cited)  have  been  liable  to  capture  as  an  armed  vessel,  yet, 
after  she  had  been  taken  possession  of  by  the  enemy,  with 
the  same  armament  still  on  board,  and  thus  was  in  a  con- 
dition to  be  used  by  the  enemy  for  hostile  purposes,  the 
fact  that  the  original  purpose  of  the  armament  was  purely 
defensive  did  not  prevent  her  from  being  considered  as  an 
armed  vessel  of  the  enemy. 

While  the  authorities  above  referred  to  present  princi-    A"!,ho/iti-eu 

1  quoted     furnish 

pies  and  analogies  worthy  of  consideration  in  the  case  at  no  conclusive 
*=  •*  rule  for  tola  cue. 

bar,  the\r  furnish  no  conclusive  rule  to  govern  its  deter- 
mination. The  decision  of  this  case  must  depend  upon  its 
own  facts,  and  upon  the  true  construction  of  the  Presi- 
dent's proclamation. 

As  to  the  facts,  there  is  no  serious  dispute.  The  mat- 
ters stated  in  the  test  affidavits  upon  which  the  motion  for 
further  proof  was  based  add  nothing  of  importance  to  the 
facts  disclosed  by  the  testimony  ///  prepara&orio,  and  by 


134 

the  mail  contract  between  her  owner  and  the  Spanish  Gov- 
ernment, which  forms  part  of  the  ship's  papers. 

The  Panama  was  a  steamship  of  1432  tons  register,  car- 
lying  a  crew  of  71  men  all  told,  owned  by  a  Spanish 
corporation,  sailing  under  the  Spanish  flag,  having  a  com- 
mission as  a  royal  mail  ship  from  the  Government  of 
Spain,  and  plying  from  and  to  New  York  and  Havana  and 
various  Mexican  ports,  with  general  cargoes,  passengers 
and  mails.  At  the  time  of  her  capture,  she  was  on  a  voy- 
age from  New  York  to  Havana,  and  had  on  board  two 
breech-loading  Hontoria  guns  of  nine  centimetre  bore, 
one  mounted  on  each  side  of  the  ship,  one  Maxim  rapid- 
firing  gun  on  the  bridge,  twenty  Remington  rifles  and  ten 
Mauser  rifles,  with  ammunition  for  all  the  guns  and  rifles, 
and  thirty  or  forty  cutlasses.  The  guns  had  been  put  on 
board  three  years  before,  and  the  small  arms  and  ammu- 
nition had  been  on  board  a  3^ear  or  more.  Her  whole 
armament  had  been  put  on  board  b}T  the  company  in  com- 
pliance with  its  mail  contract  with  the  Spanish  Govern- 
ment, (made  more  than  eleven  years  before  and  still  in 
force,)  which  specifically  required  eveiy  mail  steamship 
of  the  company  to  "take  on  board,  for  her  own  defence,'' 
such  an  armament,  with  the  exception  of  the  Maxim  gun 
and  the  Mauser  rifles. 

That  contract  contains  many  provisions  looking  to  the 
use  of  the  company's  steamships  by  the  Spanish  Govern- 
ment as  vessels  of  war.  Among  other  things,  it  requires 
that  each  vessel  shall  have  the  capacity  to  carry  500  en- 
listed men;  that  that  government,  upon  inspection  of  her 
plans  as  prepared  for  commercial  and  postal  purposes, 
may  order  her  deck  and  sides  to  be  strengthened  so  as  to 
support  additional  artillery;  and  that,  in  case  of  the  sus- 
pension of  the  mail  service  b}^  a  naval  war,  or  by  hostilities 
in  any  of  the  seas  or  ports  visited  by  the  compan3T's  ves- 
sels, the  Government  may  take  possession  of  them  with 
their  equipment  and  supplies,  at  a  valuation  to  be  made 
by  a  commission;  and  shall,  at  the  termination  of  the 
war,  return  them  to  the  company,  paying  five  per  cent 
on  the  valuation  while  it  has  them  in  its  service,  as  well 
as  an  indemnity  for  any  diminution  in  their  value. 
Panama's  Ha-  The  Panama  was  not  a  neutral  vessel;  but  she  was  enemy 

bility  to  capture,  '  * 

irrespective    of  property,  and  as  such,  even  it  she  carried  no  arms,  (either 

armament.  ,  J '  .  'V 

as  part  or  her  equipment,  or  as  cargo,)  would  be  liable  to 
capture,  unless  protected  by  the  President's  proclamation. 


135 

It  may  be  assumed  that  a  primary  object  of  her  arma- 
ment, and,  in  time  of  peace,  its  only  object,  was  for  pur- 
poses of  defence.  But  that  armament  was  not  of  itself 
inconsiderable,  as  appears,  not  only  from  the  undisputed 
facts  of  the  case,  but  from  the  action  of  the  District  Court, 
upon  the  application  of  the  commodore  commanding  at  the 
port  where  the  court  was  held,  and  on  the  recommenda- 
tion of  the  prize  commissioners,  directing  her  arms  and 
ammunition  to  be  delivered  to  the  commodore  for  the  use 
of  the  Nav}r  Department.  And  the  contract  of  her  owner 
with  the  Spanish  Government,  pursuant  to  which  the 
armament  had  been  put  on  board,  expressly  provided 
that,  in  case  of  war,  that  government  might  take  pos- 
session of  the  vessel  with  her  equipment,  increase  her 
armament,  and  use  her  as  a  war  vessel;  and,  in  these  and 
other  provisions,  evidenthr  contemplated  her  use  for  hos- 
tile purposes  in  time  of  war. 

She  was,  then,  enemy  property,  bound  for  an  enemy  character!8 
port,  carrying  an  armament  susceptible  of  use  for  hostile 
purposes,  and  herself  liable,  upon  arrival  in  that  port,  to 
be  appropriated  by  the  enemy  to  such  purposes. 

The  intent  of  the  fourth  clause  of  the  President's  procla- 
mation was  to  exempt  for  a  time  from  capture  peaceful 
commercial  vessels;  not  to  assist  the  enemy  in  obtaining 
weapons  of  war.  This  clause  exempts  "Spanish  mer- 
chant vessels"  only;  and  expressly  declares  that  it  shall  not 
apply  to  "Spanish  vessels  having  on  board  any  officer  in 
the  military  or  naval  service  of  the  enemy,  or  any  coal 
(except  such  as  may  be  necessary  for  their  voyage)  or  any 
other  article  prohibited  or  contraband  of  war,  or  any  dis- 
patch of  or  to  the  Spanish  Government." 

Upon  full  consideration  of  this  case,  this  court  is  of 
opinion  that  the  proclamation,  expressly  declaring  that 
the  exemption  shall  not  apply  to  any  Spanish  vessel  hav- 
ing on  board  an\T  article  prohibited  or  contraband  of  war, 
or  a  single  military  or  naval  officer,  or  even  a  dispatch,  <5f 
the  enemy,  cannot  reasonably  be  construed  as  including, 
in  the  description  of  "Spanish  merchant  vessels "  which 
arc  to  be  temporarily  exempt  from  capture,  a  Spanish 
vessel  owned  by  a  subject  of  the  enemy;  having  an  arma- 
ment fit  for  hostile  use;  intended,  in  the  event  of  war,  to 
be  used  as  a  war  vessel;  destined  to  a  port  of  the  enemy; 
and  liable,  on  arriving  there,  to  be  taken  possession  of  b}' 
the  enemy,  and  employed  as  an  auxiliary  cruiser  of  the 
enenn^s  navy,  in  the  war  with  this  country. 


136 

judgment.  The  result  is,  that  the  Panama  was  lawfully  captured 
and  condemned,  and  that  the  decree  of  the  District  Court 
must  be 

Affirmed. 
MR.  JUSTICE  PECKHAM  dissented. 


CASE  OF  THE  BENITO  P^STENGER. 

(Vol.  176,  United  States  Reports,  p.  568.    Decided  March  5,  1900.    MR.  CHIEF  JUSTICE 
FULLER  delivered  the  opinion  of  the  court.) 

°f  The  Benito  Estenger  was  captured  by  the  U.  S.  S.  Hor-' 
net  on  June  27,  1898,  otf  Cape  Crux  on  the  south  side  of 
the  island  of  Cuba,  and  was  brought  into  the  port  of  Key 
West  and  duly  libelled  on  July  2.  The  depositions  in 
preparatorio  of  Badamero  Perez,  Edwin  Cole  and  Enrique 
de  Messa  were  taken,  and  thereafter  and  on  July  27  a 
claim  was  interposed  by  Perez  as  master  of  the  steamer 
on  behalf  of  Arthur  Elliott  Beattie,  a  British  subject,  as 
owner,  supported  by  test  affidavits  of  himself  and  de 
Messa.  The  cause  was  preliminarily  heard  on  the  libel, 
the  depositions  in  preparatorio  and  the  test  affidavits,  and 
sixty  days  given  for  further  proofs.  Accordingly  the 
depositions  of  the  claimant  and  sundry  others  were  token 
on  behalf  of  the  claimant,  and  the  testimony  of  the  consul 
of  the  United  States  at  Kingston  on  behalf  of  the  captor. 
The  cause  coming  on  for  final  hearing,  the  court  entered 
a  decree  December  7,  1898,  condemning  the  vessel  as  law- 
ful prize  as  enemy  property,  and  ordering  her  to  be  sold 
in  accordance  with  law.  Claimant  thereupon  appealed, 
and  assigned  errors  to  the  effect  in  substance  that  the 
court  erred  in  failing  to  Hold  that  the  Benito  Estenger 
was  a  British  merchant  ship,  duly  documented  and  entitled 
to  the  protection  of  the  British  flag,  and  lawfully  owned 
and  registered  by  a  subject  domiciled  in  Great  Britain; 
and  also  in  holding  that  the  Benito  Estenger  was  lawful 
prize  of  war,  inasmuch  as  she  was  engaged  on  a  vo}7age 
in  behalf  of  the  local  Cuban  junta  in  Kingston,  allies  of 
the  United  States,  and  when  captured  was  in  the  service 
of  the  United  States,  and  employed  in  friendly  offices  to 
the  forces  of  the  United  States.  The  vessel  prior  to  June 
9,  1898,  was  the  property  of  Enrique  de  Messa,  of  the 
firm  of  Gallego,  de  Messa  and  CompamT,  subjects  of  Spain 
and  residents  of  Cuba.  On  that  day  a  bill  of  sale  was 
made  by  de  Messa  to  the  claimant,  Beattie,  a  British  sub- 


137 

ject,  and,  on  compliance  with  the  requirements  of  theth^^ent  "f 
British  law  governing1  registration,  was  registered  as  a 
British  vessel  in  the  port  of  Kingston,  Jamaica.  The 
vessel  had  been  engaged  in  trading  with  the  island  of 
Cuba,  and  more  particularly  between  Kingston  and  Mon- 
tego,  Jamaica,  and  Manzanillo,  Cuba.  She  left  Kingston 
on  the  23d  of  June,  and  proceeded  with  a  cargo  of  flour, 
rice,  cornmeal  and  coffee  to  Manzanillo,  where  the  cargo 
was  discharged.  She  cleared  from  Manzanillo  at  2  o'clock 
A.  M.,  June  27,  for  Moritego,  and  then  for  Kingston,  and 
was  captured  at  half-past  five  of  that  day  off  Cape  Cruz. 
The  principal  question  was  as  to  the  ownership  of  the 
vessel  and  the  legality  of  the  alleged  transfer,  but  other 
collateral  questions  were  raised  in  respect  of  the  alleged 
Cuban  sympathies  of  de  Messa;  service  on  behalf  of  the 
Cuban  insurgents  in  the  United  States;  and  the  relation 
of  the  United  States  consul  to  the  transactions  which  pre 
ceded  the  seizure.  It  was  argued  that  the  vessels  of  Cuban 
insurgents  and  other  adherents  could  not  be  deemed  prop- 
erty of  the  enemies  of  the  United  States;  that  this  capture 
could  not  be  sustained  on  the  ground  that  the  vessel  was 
such  property;  that  the  conduct  of  de  Messa  in  his  sale  to 
Beattie  was  lawful,  justifiable,  and  the  only  means  of 
protecting  the  vessel  as  neutral  property  from  Spanish 
seizure;  and  finalhr,  that  this  court  could  and  should  do 
justice  by  ordering  restitution,  under  all  circumstances  of 
the  case. 

MR.  CHIEF  JUSTICE  FULLER,  after  stating  the  case,  de-    opinion, 
livered  the  opinion  of  the  court. 

If  the  alleged  transfer  was  colorable  merely,  and  Messa 
was  the  owner  of  the  vessel  at  the  time  of  capture,  did  the 
District  Court  err  in  condemning  the  Benito  Estenger  as 
lawful  prize  as  enemy  property? 

•'Enemy  property"  is  a  technical  phrase  peculiar  to 
prize  courts,  and  depends  upon  principles  of  public  policy 
as  distinguished  from  the  common  law.  The  general  rule 
is  that  in  war  the  citizens  or  subjects  of  the  belligerents 
are  enemies  to  each  other  without  regard  to  individual  sen- 
timents or  dispositions,  and  that  political  status  determines 
the  question  of  enemy  ownership.  And  by  the  law  of 
prize,  property  engaged  in  any  illegal  intercourse  with  the 
enemy  is  deemed  enemy  property,  whether  belonging  to  illegal  traffic 

11"  •*.•  -ii          il/u  -i-iii      stamps  property 

an  ally  or  a  citizen,  as  the  illegal  t  rathe  stamps  it  with  the  as  hostile, 
hostile  character  and  attaches  to  it   all  the   penal  conse- 


138 

quences.  Prize  Cases,  2  Black,  635,  674;  The  Sally,  8 
Oranch,  382,  384;  Jecker  v.  Montgomery,  18  How.  110; 
The  Peterhoff,  5  Wall.  28;  The  Flying  Scud,  6  Wall.  263. 

Messa  was  a  Spanish  subject,  residing-  at  Santiago,  and 
for  years  engaged  in  business  there.  His  vessel  had  a 
Spanish  crew  and  Spanish  officers,  and  he  testified  that  he 
was  on  board  of  her  as  supercargo.  She  had  the  Spanish 
Hag  in  her  lockers,  though  she  was  flying  the  British  flag 
at  the  moment,  under  a  transfer,  which,  as  presently  to  be 
seen,  was  colorable  and  invalid.  There  was  evidence  tend- 
ing* to  show  that  Messa  sympathized  with  the  Cuban  in- 
surgents, but  no  proof  that  he  was  himself  a  Cuban  rebel 
or  that  he  had  renounced  his  allegiance  to  Spain.  The 
vessel  carried  to  Manzanillo  on  this  voyage  a  cargo  of  pro- 
visions, consisting  principally  of  eleven  hundred  barrels 
of  flour. 

Manzanillo  was  a  city  of  several  thousand  inhabitants 
and  .the  first  important  place  on  the  south  Cuban  coast  be- 
tween Santiago  and  Cienfuegos,  lying  inside  the  bay 
formed  by  the  promontory  which  Cape  Cruz  terminates, 
and  about  sixty  miles  northeast  of  the  cape.  Cape  Cruz 
is  about  due  north  from  Montego  Bay  on  the  northwestern 
shore  of  Jamaica,  and  about  seventy-five  miles  distant, 
while  Kingston  is  on  the  southeastern  coast  of  Jamaica. 
The  record  lacks  evidence  of  the  condition  of  affairs  there 
at  that  time,  but  official  reports  leave  no  doubt  that  it  was 
defended  by  several  vessels  of  war  and  \>\  shore  batteries, 
and  was  occupied  by  some  thousands  of  Spanish  soldiers. 
On  the  6th  of  April,  1898,  the  Secretary  of  the  Navy 
had  instructed  Admiral  Sampson,  among  other  things, 
that  the  Department  desired,  "that  in  case  of  war,  you  will 
maintain  a  strict  blockade  of  Cuba,  particularly  the  ports 
of  Havana,  Matanzas,  and,  if  possible,  Santiago  de  Cuba, 
Manzanillo  and  Cienfuegos."  Manzanillo  was  the  termi- 
nus of  a  cable  which  connected  with  Santa  Cruz,  Trinidad, 
Cienfueg"os  and  Havana,  and  was  subsequently  cut  by  the 
forces  of  the  United  States,  in  order  to  check  the  inland 
traffic  with  Manzanillo  and  to  prevent  the  calling  of  reen- 
forcements  to  resist  the  capture  of  that  place.  And  it 
appeared  that  Admiral  Sampson  had  been  for  some  weeks 
endeavoring  to  stop  blockade  running-  on  the  south  coast 
of  Cuba,  and  that  a  large  vessel  with  a  heavy  battery  w;is 
stationed  at  Cape  Cruz.  Manzanillo  was  not  declared 
blockaded,  however,  until  the  proclamation  of  June  27, 
1898;  but  the  consul  of  the  United  States  at  Kingston  had 


139 

warned  Messa  and  Beattie  that  a  blockade  in  fact  existed. 
The  claimant  testified  that  the  vessel  was  chartered  bjr 
Flouriache,  a  Cuban  merchant,  and  that  the  cargo  was 
consigned  to  Bauriedel  and  Company,  at  Manzanillo.  The 
deposition  of  neither  of  these  was  taken.  According  to 
the  explicit  testimony  of  the  consul,  he  was  informed  by 
both  the  claimant  and  his  brother  that  the  flour  was  trans- 
ferred by  Bauriedel  and  Compamr,  through  a  communi- 
cating way  from  their  warehouse  to  the  Spanish  govern- 
ment warehouse,  immediately  upon  its  delivery:  and  no 
evidence  to  contradict  this  was  introduced. 

The  instructions  of  the  Navy  Department  to  "Blockading 
Vessels  and  Cruisers,"  in  the  late  war,  included  among  arti- 
cles conditionally  contraband,  "Provisions,  when  destined 
for  an  enemy's  ship  or  ships,  or  for  a  place  that  is  besieged." 

In  The  Cominercen,  I  Wheat.  382,  388,  Mr.  Justice ri*£f^"0K{- 
Story  said:  "  By  the  modern  law  of  nations  provisions  areband- 
not,  in  general,  deemed  contraband;  but  they  may  become 
so,  although  the  property  of  a  neutral,  on  account  of  the 
particular  situation  of  the  war,  or  on  account  of  their  des- 
tination. ...  If  destined  for  the  ordinary  use  of  life 
in  the  enemy's  country,  they  are  not,  in  general,  contra- 
band; but  it  is  otherwise  if  destined  for  military  use. 
Hence,  if  destined  for  the  army  or  nav}7  of  the  enemy,  or 
for  his  ports  of  naval  or  military  equipment,  they  are 
deemed  contraband." 

In  The  Jonqe  Marqaretha,  1  C.  Rob.  189,  193,  Sir  Wil-    sir  wniiam 

.  y  y  f  .Scott  on  the  same 

liam  Scott  discussed  this  question,  and,  after  referring  to<}uestion- 
many  instances,  concluded:  "And  I  take  the  modern 
established  rule  to  be  this,  that  generally  the\T  are  not 
contraband,  but  may  become  so  under  circumstances  aris- 
ing out  of  the  particular  situation  of  the  war,  or  the 
condition  of  the  parties  engaged  in  it." 

But  while  ajluding  to  this  subject  by  way  of  illustration 
we  do  not  feel  called  on  to  consider  under  what  particular 
circumstances,  generally  speaking,  provisions  ma}'  be  held 
contraband  of  war.  It  is  enough  that  in  dealing  with  a  Trade  with  the 

enemy  on  an  en- 

vessel  adjudicated  to  have  been  an  enemy  vessel,  the  factem.v  vessel  deci- 
of  trade  with  the  enemj',  especiall}'  in  supplies  necessary 
for  the  enemy's  forces,  is  of  well  nigh  decisive  importance. 
In  reply  it  is  suggested  that  this  cargo  was  intended  for 
the  Cuban  insurgents,  and  a  quotation  is  made  from  a  letter 
of  the  consul  to  the  effect  that  he  had  been  "  told  privately 
by  the  president  of  the  local  junta,  who  has  performed 
valuable  services  for  me,  that  the  proceeds  of  this  cargo 


are  to  be  forwarded  to  the  Cuban  government  and  troops 
through  the  Cuban  agent  at  Manzanillo."  The  suggestion 
derives  no  support  from  the  record,  and  the  facts  remain 
that  the  provisions  were  delivered  to  the  Spanish  govern- 
ment, and  that  the  trade  to  this  Spanish  stronghold  consti- 
tuted, under  the  laws  of  war.  illicit  intercourse  with  the 
enemy. 

This  brings  us  to  consider  the  contention  that  Messa  had 
rendered  important  services  to  the  United  States;  that  he 
was  the  friend  and  not  the  enemy  of  this  Government,  and 
that  there  was  an  agreement  between  him  and  the  United 
States  consul  which  operated  to  protect  the  vessel  from 
capture.  But  Messa's  status  was  that  of  an  enemy,  as 
friendly  a<?ts?alalrea(ty  stated,  and  this  must  be  held  to  be  so  notwith- 
standing individual  acts  of  friendship,  certainly  since  there 
was  no  open  adherence  to  the  Cuban  cause,  and  allegiance 
could  have  been  shifted  with  the  accidents  of  war.  The 
legal  conclusion  was  not  affected  by  the  fact  that  Messa 
had,  in  cultivating  friendly  relations  with  the  consul,  given 
the  latter  an  old  Government  plan  of  the  province  of  San- 
tiago and  an  especially  prepared  chart  of  the  harbor.  Thus 
displaying  his  amicable  inclinations,  he  endeavored  to 
obtain  from  the  consul  a  letter  of  protection  for  the  voyage 
he  was  about  to  undertake,  but  this  the  consul  declined  to 
furnish,  and  informed  him  at  the  same  time  that  Manza- 
nillo was  blockaded,  and  that  the  contemplated  venture 
would  be  at  his  own  risk. 

Nevertheless,  the  consul  agreed  to  write  the  Admiral, 
and  did  write  him  June  23,  that  Messa  offered  to  give  cer- 
tain information  that  might  be  valuable,  and  that  he  pro- 
posed to  be  off  Cape  Cruz  on  June  30,  when  he  could  be 
picked  up  there  and  taken  to  the  Admiral  if  desired;  but 
the  consul  said:  ''You  quite  understand  that  in  dealing 
with  those  people,  one  is  always  more  or  less  liable  to  im- 
position. I  therefore  make  no  recommendation  of  Messa 
to  you."  There  was  nothing  to  show  that  the  voyage  was 
undertaken  on  the  strength  of  this  letter  or  that  it  in  any 
way  contributed  to  the  capture,  nor  that  the  Admiral  in- 
tended to  avail  himself  of  the  suggestion  in  regard  to 
Messa. 

The  claimant  asserted  and  the  consul  denied  that  protec- 
tion to  the  voyage  was  extended  by  the  latter.  But  we  do 
not  go  at  length  into  this  matter  because  we  think  that  no 
engagement  with  the  United  States  nor  any  particular 
service  to  the  United  States  was  made  out  in  that  connec- 


141 

tion,  and  so  far  as  appears  the  vessel  was  captured  in  the 
ordinary  course  of  cruising  duty  at  a  time  and  tinder  cir- 
cumstances when  her  liability  was  not  to  be  denied.  More-  consult  manot 
over,  a  United  States  consul  has  no  authority  by  virtue  of  f^emption  to 
his  official  station  to  grant  any  license  or  permit  the  ex- e 
eruption  of  a  vessel  of  an  enemy  from  capture  and  confis- 
cation. This  was  so  held  by  Judge  McCaleb  in  JRogers  v. 
The  Amado,  Newberry,  400,  in  which  he  quotes  the  lan- 
guage of  Sir  William  Scott  in  The  Hope,  1  Dodson,  226, 
229:  "To  exempt  the  property  of  enemies  from  the  effect 
of  hostilities,  is  a  very  high  act  of  sovereign  authority;  if 
at  any  time  delegated  to  persons  in  a  subordinate  situation, 
it  must  be  exercised  either  by  those  who  have  a  special 
commission  granted  to  them  for  the  particular  business, 
and  who,  in  legal  language,  are  termed  mandatories,  or  b}7 
persons  in  whom  such  a  power  is  vested  in  virtue  of  any 
official  situation  to  which  it  may  be  considered  incidental. 
It  is  quite  clear  that  no  consul  in  any  country,  particularly 
in  an  enemy's  country,  is  vested  with  any  such  power  in 
virtue  of  his  station.  '  El  rei  non  prceponitur^  and  there- 
fore his  acts  relating  to  it  are  not  binding." 

In  77w  Joseph,  8  Cranch,  451,  the  vessel  was  condemned 
for  trading  with  the  enem}r,  and  it  was  held  that  she  was 
not  excused  by  the  necessity  of  obtaining  funds  to  pay  the 
expenses  of  the  ship,  nor  by  the  opinion  of  an  American 
minister  expressed  to  the  master,  that  by  undertaking  the 
voyage  he  would  violate,  no  law  of  the  United  States.  The 
court  said  that  these  considerations,  "if  founded  in  truth, 
present  a  case  of  peculiar  hardship,  yet  the}7  afford  no 
legal  excuse  which  it  is  competent  to  this  court  to  admit 
as  the  basis  of  its  decision." 

This  is  equally  true  of  the  case  before  us,  for  even  if 
the  circumstances  ma}'  have  justified  liberal  treatment,  that 
can  not  be  permitted  to  influence  our  decision.  It  belongs 
to  another  department  of  the  Government  to  extend  such 
amelioration  as  appears  to  be  demanded  in  particular 
instances. 

Neither  the  case  of  Les  OinqFreres,  4  Lebau's  Nouveau 
Code  des  Prises,  63,  nor  that  of  The  Maria,  6  C.  Rob.  201, 
cited  by  counsel,  is  in  point.  In  the  former,  the  Commit- 
tee of  Public  Safety  in  the  year  three  of  the  French  calen- 
dar of  the  Revolution  decreed  the  condemnation  of  Les 
Cinq  F  re  res  as  an  enemy's  vessel,  and  of  her  cargo  although 
belonging, to  Frenchmen,  but  further  decreed  restitution 
of  the  cargo  or  its  value,  as  matter  of  grace,  in  considera- 


142 

tion  of  services  rendered  by  the  claimants  in  furnishing- 
provisions  to  the  Republic,  adding  that  this  should  not  be 
drawn  into  a  precedent.  The  latter  simply  involved  the 
interpretation  of  an  indulgence  specifically  granted  by  the 
British  Government. 
colorable  Thus  far  we  have  proceeded  on  the  assumption  that  the 

r&iisicris  *•  •*• 

ion  con"  transfer  of  the  Benito  Estenger  was  merely  colorable,  and 
this,  if  so,  furnished  in  itself  ground  for  condemnation. 
A  brief  examination  of  the  evidence,  in  the  light  of  well- 
settled  principles,  will  show  that  the  assumption  is  correct. 

Messa's  story  of  the  transfer  was  that  the  steamer  had 
been  owned  l>y  Gallego,  Messa  and  Company,  and  then  by 
himself;  that  he  was  compelled  to  sell  in  order  to  get 
money  to  live  on;  that  he  made  the  sale  for  $40,000,  for 
which,  or  a  large  amount  of  which,  credit  was  given  on  an 
indebtedness  of  Messa  to  Beattie  and  Company,  and  that 
he  was  employed  by  Beattie  to  go  on  the  vessel  as  his  rep- 
resentative and  business  manager. 

It  appeared  that  Beattie  applied  to  the  customs  and 
shipping  office  in  Jamaica  for  a  British  register,  lodged 
with  him  the  bill  of  sale,  and  made  a  declaration  of  owner- 
ship before  him  as  registrar  of  shipping,  which  documents 
were  filed  on  June  9  and  14  respectively,  and  were  in  con- 
formity with  the  requirements  of  British  law.  The  depo- 
sitions of  the  ship  broker  and  his  emplo3Tes  put  the  price 
at  nine  thousand  pounds,  and  showed  their  belief  that  the 
sale  was  bonafide,  founded  on  what  passed  between  Messa 
and  Beattie.  They  did  not  know  what  arrangements  were 
made  for  the  payment  of  the  price  or  how  or  in  what  shape 
the  purchase  mone}7  was  paid.  The  accountant  stated  that 
after  the  sale  Beattie  went  on  board  and  took  possession 
of  the  vessel,  and  informed  the  officers  in  charge  that  he 
become  the  owner,  gave  orders  regarding  her,  and 
transfer0  after  inf°rmed  witness  that  he  had  given  Messa  the  position  as 
supercargo. 

There  was  considerable  confusion  on  the  point  as  to  who 
conflicting  evi-  was  master  of  the  vessel  after  the  transfer.     Perez  testi- 

as  to  who 


the*  transfer  after  ^^  *na*  ^e  was'  anc^  as  master  he  interposed  the  claim  on 
behalf  of  Beattie.  He  also  swore  that  Mr.  Beattie  "in- 
formed him  that  he  could  remain  as  master,  but  it  would 
be  necessary  for  him  to  put  an  English  subject  on  board 
as  first  officer  or  second  captain,  in  conformity  with  the 
British  law."  Cole,  a  British  subject,  asserted  that  he 
was  master,  and  Beattie  stated  that  he  appointed  him  such 
with  Perez  as  mate  and  pilot,  while  Messa  said  that  Perez 


143 

was  master  and  that  he,  Messa,  was  supercargo.  Peivx 
had  been  the  captain  of  the  ship  and  remained  on  her,  and 
conceding  that  Cole  was  placed  on  board  in  the  capacitjr  of 
captain,  the  inference  is  not  unreasonable  that  this  was  for 
appearances  only. 

Beattie  testified  that  he  was  a  member  of  the  firm  of 
Beattie  and  Company,  composed  of  himself  and  his  broth- 
ers, all  British  subjects,  and  interested  in  lands,  sugar 
estates,  mines  and  forests  in  the  district  of  Manzanillo; 
that  he  had  resided  there  for  some  years,  returning  to  his 
parents'1  home  in  England  for  several  months  at  a  time; 
that  he  concluded  the  purchase  of  the  Benito  Estenger 
from  Messa  on  June  9,  1898;  that  she  left  Jamaica  on  her 
last  voyage  on  June  23,  bound  for  Manzanillo,  and  char- 
tered by  Flouriache,  a  Cuban  merchant,  carrying  a  cargo 
of  foodstuffs  sent  for  the  purpose  of  trade;  that  he  bought 
the  vessel  for  nine  thousand  pounds;  but  he  declined  to 
state  of  what  the  payment  or  payments  of  the  purchase 
money  consisted,  although  saying  that  the  sale  was  bona 


The  consul  testified  that  claimant,  in  conversation,  while 
insisting  that  the  transfer  was  absolute,  admitted  that  it 
was  effected  for  the  purpose  of  protecting  the  vessel. 

In  short,  the  statements  as  to  price  were  conflicting;  the  .  R^um 

'  dence  regarding 

reason  assigned  for  the  sale  was  to  get  money  to  live  on,  transfer. 
and  yet  apparently  no  money  passed,  and  Messa  said  that 
he  received  credit  for  a  large  part  of  the  consideration  on 
indebtedness  to  claimant's  firm;  claimant  himself  refused 
to  describe  the  payment  or  payments;  the  Spanish  master 
and  crew  remained  in  charge;  Messa  went  on  the  voyage 
as  supercargo;  the  vessel  continued  in  trade,  which,  in  this 
instance  at  least,  appeared  to  be  plainly  trade  with  the 
enemy;  and,  finalh",  it  is  said  by  claimant's  counsel  in  his 
printed  brief:  "  It  will  not  be  contended  upon  this  appeal 
that  all  the  interest  of  Mr.  Messa  in  the  Benito  Estenger 
ceased  on  June  9,  1898.  The  transfer  was  obviously  made 
to  protect  the  steamer  as  neutral  property  from  Spanish 
sei/ure.  That  Mr.  Messa,  however,  still  retained  a  bene- 
ficial interest  after  this  sale  and  transfer  of  flags,  and  con- 
tinued to  act  for  the  vessel  as  supercargo,  has  not  been 
disputed."1 

The  attempt  to  break  the  force  of  this  admission  by  the 
contention  that  the  change  of  Hag  was  justifiable  as  made 
to  avoid  capture  by  the  Spanish  is  no  more  than  a  reitera- 
tion of  the  argument  that  Messa  was  a  Cuban  rebel,  and  his 


144 

vessel  a  Cuban  vessel,  which,  as  has  been  seen,  we  have 
been  unable  to  concur  in.  If  the  transfer  were  invalid,  she 
belonged  to  a  Spanish  subject,  she  was  engaged  in  an  ille- 
gal venture,  and  her  owner  can  not  plead  his  fear  of  Span- 
ish aggression. 

1  of* validity     Transfers  of  vessels  ftagrante  ~bello  were  originally  held 
nva^J  kut  the  rule  has  been  modified,  and  is  thus  given 

6eMo  by  Mr.  Hall,  who,  after  stating  that  in  France  "their  sale 

is  forbidden,  and  they  are  declared  to  be  prize  in  all  cases 
in  which  the}r  have  been  transferred  to  neutrals  after  the 
buj- ers  could  have  knowledge  of  the  outbreak  of  the  war ; " 
sa}'s:  "in  England  and  the  United  States,  on  the  contrary, 
the  right  to  purchase  vessels  is  in  principle  admitted,  thej' 
being  in  themselves  legitimate  objects  of  trade  as  fully  as 
an}T  other  kind  of  merchandise,  but  the  opportunities  of 
fraud  being  great,  the  circumstances  attending  a  sale  are 
severely  scrutinized,  and  the  transfer  is  not  held  to  be 
good  if  it  is  subjected  to  any  condition  or  even  tacit  un- 
derstanding by  which  the  vendor  keeps  an  interest  in  the 
vessel  or  its  profits,  a  control  over  it,  a  power  of  revoca- 
tion, or  a  right  to  its  restoration  at  the  conclusion  of  the 
war.''  International  Law,  (4th  ed.)  525.  And  to  the  same 

samerques"ion.he  effect  is  Mr.  Justice  Story  in  his  Notes  on  the  Principles 
and  Practice  of  Prize  Courts,  (Pratt's  ed.)  63 ;  2  Wheat. 
App.  30:  "In  respect  to  the  transfers  of  enemies'  ships  dur- 
ing the  war,  it  is  certain  that  purchases  of  them  by  neu- 
trals are  not,  in  general,  illegal;  but  such  purchases  are 
liable  to  great  suspicion;  and  if  good  proof  be  not  given  of 
their  validity  by  a  bill  of  sale  and  pa3Tment  of  a  reasonable 
consideration,  it  will  materially  impair  the  validity  of  a 
neutral  claim;  .  .  .  and  if  after  such  transfer  the  ship  be 
employed  habitually  in  the  enemy's  trade,  or  under  the 
management  of  a  hostile  proprietor,  the  sale  will  be  deemed 
merely  colorable  and  collusive.  .  .  .  Anything  tending 
to  continue  the  interest  of  the  enemy  in  the  ship  vitiates  a 
contract  of  this  description  altogether." 
f"  Tfie  8ec^  Geschwistern,  4  C.  Rob.  100,  is  cited,  in 
which  Sir  William  Scott  said:  "This  is  the  case  of  a  ship, 
asserted  to  have  been  purchased  of  the  enemy;  a  liberty 
which  this  country  has  not  denied  to  neutral  merchants, 
though  by  the  regulation  of  France,  it  is  entirely  forbid- 
den. The  rule  which  this  country  has  been  content  to 
apply  is,  that  property  so  transferred,  must  be  Itonajide 
and  absolutely  transferred;  that  there  must  be  a  sale  di- 
vesting the  enemy  of  all  further  interest  in  it;  and  that 


145 


anything  tending  to  continue  his  interest,  vitiates  a  con- 
tract of  this  description  altogether." 

In  The  Jemmy,  4  C.  Rob.  31,  the  same  eminent  jurist 
observed:  "This  case  has  been  admitted  to  farther  proof, 
owing  entirely  to  the  suppression  of  a  circumstance,  which 
if  the  court  had  known,  it  would  not  have  permitted  far- 
ther proof  to  have  been  introduced;  namely,  that  the  ship 
has  been  left  in  the  trade,  and  under  the  management  of 
her  former  owner.  Wherever  that  fact  appears,  the  court 
will  hold  it  to  be  conclusive,  because,  from  the  evidentia 
ret,  the  strongest  presumption  necessarily  arises,  that  it  is 
merely  a  covered  and  pretended  transfer.  The  presump- 
tion is  so  strong,  that  scarcely  any  proof  can  avail  against 
it.  It  is  a  rule  which  the  court  finds  itself  under  the  abso- 
lute necessity  of  maintaining.  If  the  enemy  could  be 
permitted  to  make  a  transfer  of  the  ship,  and  yet  retain 
the  management  of  it,  as  a  neutral  vessel,  it  would  be 
impossible  for  the  court  to  protect  itself  against  frauds." 

And  in  The  Omnibus,  6  C.  Rob.  71,  he  said:  "The  court 
has  often  had  occasion  to  observe,  that  where  a  ship, 
asserted  to  have  been  transferred,  is  continued  under  the 
former  agency  and  in  the  former  habits  of  trade,  not  all 
the  swearing  in  the  world  will  convince  it  that  it  is  a  gen- 
uine transaction." 

The  rule  was  stated  by  Judge  Cadwalader  of  the  Eastern 
District  of  Pennsylvania  thus:  "The  rule  of  decision  in 
some  countries  has  been  that,  as  to  a  vessel,  no  change  of 
ownership  during  hostilities  can  be  regarded  in  a  prize 
court.  In  the  United  States,  as  in  England,  the  strictness 
of  this  rule  is  not  observed.  But  no  such  change  of  prop- 
erty is  recognized  where  the  disposition  and  control  of  a 
vessel  continue  in  the  former  agent  of  her  former  hostile 
proprietors;  more  especially  when,  as  in  this  case,  he  is  a 
person  whose  relations  of  residence  are  hostile."  The 
I*l«nd  Belle,  13  Fed.  Cases,  168. 

So  in  The  Baltica.  Spinks  Prize  Cases,  264,  several 
vessels  had  been  sold  by  a  father,  an  enemy,  to  his  son,  a 
neutral,  immediately  before  the  war,  and  only  paid  for  in 
part,  the  remainder  to  be  paid  out  of  the  future  earnings 
thereof,  and  the  Baltica,  which  was  one  of  them,  was 
condemned  on  the  ground  of  a  continuance  of  the  enemy's 
interest. 

In  The  Soglasie,  Spinks  Prize  Cases,  104,  Dr.  Lushing- 
ton  held  the  imnx  jn-tJuimlt'  to  he  upon  the  claimant,  and 
made  these  observations:  "With  regard  to  documents  of 

2056—04 10 


The  Jemmy. 


The  Omnibus. 


The 
Belle. 


Island 


The  Baltica. 


146 

a  formal  nature,  though  when  well  authenticated  the}'  are 
to  be  duly  appreciated,  it  does  not  follow  that  they  are 
always  of  the  greatest  weight,  because  we  know,  without 
attributing  blame  to  the  authorities  under  which  they 
issue,  the}"  are  instruments  often  procured  with  extraor- 
dinary facility.  What  the  court  especially  desires  is,  that 
testimony  which  bears  less  the  appearance  of  formality,— 
evidence  natural  to  the  transaction,  but  which  often  car- 
ries with  it  a  proof  of  its  own  genuineness;  the  court 
looks  for  that  correspondence  and  other  evidence  which 
naturally  attends  the  transaction,  accompanies  it,  or  follows 
it,  and  which,  when  it  bears  upon  the  face  of  it  the  aspect 
of  sincerity,  will  always  receive  its  due  weight." 
st  Merck.  In  The  Ernst  Merck,  Spinks  Prize  Cases,  98,  the  sale 
was  to  neutrals  of  Mecklenburg  shortly  before  the  break- 
ing out  of  war,  and  it  was  ruled  that  the  onus  of  giving 
satisfactory  proof  of  the  sale  was  on  the  claimant,  and 
without  it  the  court  could  not  restore  even  though  it  was 
not  .called  on  to  pronounce  affirmatively  that  the  transfer 
was  fictitious  and  fraudulent.  In  that  case  the  vessel  was 
condemned  partly  because  of  absence  of  proof  of  pay- 
ment, Dr.  Lushington  saying:  "We  all  know  that  one 
of  the  most  important  matters  to  be  established  by  a 
claimant  is  undoubted  proof  of  payment." 

To  the  point  that  the  burden  of  proof  was  on  the  claim- 
ant see  also  The  Jenny,  5  Wall.  183;  The  Amiable  Isabella, 
6  Wheat.  1;  TheLilla.  2  Cliff.  169;  Story's  Prize  Courts,  26. 
judgment.  We  think  that  the  requirements  of   the  law  of  prize 

were  not  satisfied  by  the  proofs  in  regard  to  this  transfer, 
and  on  all  the  evidence  are  of  opinion  that  the  court  below 
was  right -in  the  conclusion  at  which  it  arrived. 

Decree  tijfir  i //<•</. 

MR.  JUSTICE  SHIRAS,  MR.  JUSTICE  WHITE  and  MR.  JUS- 
TICE PECKHAM  dissented. 


CASE  OF  THE  CARLOS  F.  ROSES. 

(Vol.  177,  United  States  Reports,  p.  655.    Decided  May  14,  1900.    MR.  CHIEF  .It  STK  K 
FULLER  delivered  the  opinion  of  the  court.) 


°f  The  ^ai'l°s  F.  Roses  was  a  Spanish  bark  of  499  tons, 
hailing  from  Barcelona,  Spain,  sailing  under  the  Spanish 
flag,  and  officered  and  manned  by  Spaniards.  She  had 
been  owned  for  many  years  by  Pedro  Roses  Valenti,  a  cit- 
izen of  Barcelona.  Her  last  voyage  began  at  Barcelona, 


147 

whence  she  proceeded  to  Montevideo,  Uruguay,  with  a  t 
cargo  of  wine  and  salt.  All  of  the  outward  cargo  was  dis- 
charged at  Montevideo,  where  the  vessel  took  on  a  cargo 
of  jerked  beef  and  garlic  to  be  delivered  at  Havana.  Cuba, 
and  sailed  for  the  latter  port  on  March  16. 1898.  On  May 
17,  when  in  the  Bahama  Channel  off  Punta  de  Maternillos, 
Cuba,  and  on  her  course  to  Havana,  she  was  captured  by 
the  United  States  cruiser  New  York  and  sent  to  Key  West 
in  charge  of  a  prize  crew.  The  bark  and  her  cargo  were 
duly  libelled  May  20.  All  of  the  ship's  papers  were  de- 
livered to  the  prize  commissioners,  and  the  deposition  of 
Maristany,  her  master,  was  taken  in  preparatorio.  Klein- 
wort  Sons  and  Company  of  London,  England,  made  claim 
to  the  cargo,  consisting  of  a  shipment  of  110,256  kilos  of 
jerked  beef  and  19,980  strings  of  garlic,  and  a  further 
shipment  of  165,384  kilos  of  jerked  beef,  alleging  that 
they  were  its  owners  and  that  it  was  not  lawful  prize  of 
war.  In  support  of  the  claim  the  firm's  agent  in  the 
United  States  filed  a  test  affidavit  made  on  information  and 
belief.  In  this  it  was  alleged  that  Kleinwort  Sons  and 
Company  were  merchants  in  London;  that  the  members 
of  the  firm  were  subjects  of  the  United  Kingdom  of  Great 
Britain  and  Ireland;  that  in  February  and  March,  1898, 
the  bark,  being  then  in  Montevideo,  bound  on  a  voyage 
to  Havana,  took  on  board  a  cargo  of  jerked  beef  and 
strings  of  garlic  shipped  by  Pla  Gibernau  and  Company, 
merchants  of  Montevideo,  to  be  transported  to  the  port  of 
Havana,  and  there  to  be  delivered  to  the  order  of  the  ship- 
pers according  to  the  condition  of  certain  bills  of  lading 
issued  therefor  by  the  bark  to  Pla  Gibernau  and  Compan}-; 
that  the  members  of  the  firm  of  Gibernau  and  Company 
were  citizens  of  the  Argentine  Republic;  that  the  bark 
left  Montevideo  on  March  16,  and  proceeded  on  her  voy- 
age to  Havana,  until  May  17,  when,  being  at  a  point  in 
the  Bahama  Channel  off  Martinique,  she  was  captured  by 
the  United  States  cruiser  New  York,  without  resistance  on 
her  part,  and  sent  into  Key  West  as  prize  of  war.  That 
after  the  shipment  of  the  cargo  in  Montevideo  claimants 
made  advances  to  the  shippers  and  owners  of  the  cargo  in 
the  sum  of  £6297,  British  sterling,  to  wit,  £2714  item 
thereof,  upon  the  security  of  said  lot  of  110,256  kilos  of 
jerked  beef  and  19,980  strings  of  garlic,  and  £3583  item 
thereof,  upon  the  security  of  said  lot  of  165,384  kilos  of 
jerked  !>eef;  that  at  the  time  of  making  said  advances  and 
in  consideration  thereof,  bills  of  lading  covering  the  ship- 


148 

statement  of  ments  were  delivered  to  claimants  duly  indorsed  in  blank 
with  the  intent  and  purpose  that  they  should  thereby  take 
title  to  said  bills  of  lading,  and  to  said  shipments  of 
jerked  beef  and  garlic,  and  should,  on  the  arrival  of  the 
vessel  at  her  destination,  take  delivery  of  the  shipments 
and  hold  the  same  as  security  for  their  said  advances  until 
paid,  and  with  the  right  to  dispose  of  said  shipments  and 
to  appty  the  proceeds  to  the  payment  of  their  said  ad- 
vances; and  accordingly  the  said  Kleinwort  Sons  and  Com- 
pany did  become  and  ever  since  have  been  and  still  are  as 
aforesaid  the  true  and  lawful  owners  of  the  said  bills  of 
lading  and  of  the  shipments  of  jerked  beef  and  garlic 
therein  referred  to.  The  affidavits  further  stated  that 
the  advances  were  equivalent  in  money  of  the  United 
States  to  about  $30,6-14.35,  and  that  no  part  of  the  same 
had  been  paid,  or  otherwise  secured  to  be  paid. 

The  cause  was  heard  on  the  libel  and  claims  of  the  mas- 
ter of  the  bark  and  Kleinwort  and  Company,  and  the  evi- 
dence taken  in  preparatorio.  The  vessel  was  condemned 
as  enemy  property,  and  the  court  ordered  the  claimants  of 
the  cargo  to  "have  sixty  days  in  which  to  file  further  proof 
of  ownership;1'  and  because  of  its  perishable  nature  the 
marshal  of  the  court  was  ordered  to  advertise  and  sell  the 
same,  and  deposit  the  proceeds  in  accordance  to  law.  No 
appeal  was  taken  on  behalf  of  the  vessel.  The  cargo  was 
sold  and  the  proceeds  deposited  with  the  assistant  treas- 
urer of  the  United  States  at  New  York,  subject  to  the  order 
of  the  court.  The  time  for  claimants  to  take  further  proofs 
was  twice  extended.  No  witnesses  were  produced  by  claim- 
ants, but  Charles  F.  Harcke,  claimants'  manager  in  Lon- 
don, made  three  ex  parte  affidavits  before  the  United  States 
consul  genera],  which  were  offered  in  evidence  by  claim- 
ants. Appended  to  the  affidavits  were  a  large  number  of 
exhibits  purporting  to  be  papers,  or  copies  of  papers, 
relating  to  the  shipment  of  the  cargo,  and  some  of  the 
financial  transactions  of  some  of  those  who  had  to  do  with 
it.  From  these  affidavits  and  papers  it  appeared  that  the 
voyage  of  the  Carlos  F.  Roses  was  a  joint  venture  entered 
into  by  Pedro  Pages  of  Havana,  a  Spanish  subject;  the 
Spanish  owners  of  the  vessel,  and  Gibernau  and  Company. 
The  whole  cargo  was  made  up  of  two  shipments,  one  of 
jerked  beef  and  one  of  garlic,  which  had  been  purchased 
b}r  Gibernau  and  Company  on  commission,  and  by  them 
delivered  to  the  Carlos  F.  Roses  "consigned  to  order  for 
account  and  risk  and  by  order  of  the  parties  noted"  in  the 


149 

invoices.  The  shipment  of  jerked  beef  containing  275,640  , 
kilos  in  bulk  was  divided  thus:  60%,  165,384  kilos,  k"to 
the  expedition  or  voyage  of  the  Carlos  F.  Roses;"  40%, 
110,256  kilos,  "to  Mr.  Pedro  Pages  of  Havana."  The 
shipment  of  garlic  was  divided  thus:  9990  strings,  "account 
of  Mr.  Pedro  Pages,"  and  9990  strings  for  "account  of" 
Gibernau  and  Company.  Both  invoices  were  signed  by 
Gibernau  and  Company,  and  bore  date  March  11  and  12, 
1898. 

Harcke  stated  in  one  of  his  affidavits  that:  "The  said 
cargo  was  ultimately  destined  for  Don  Pedro  Pages,  of 
Havana,  who  in  the  ordinary  course  of  business  would  by 
payment  to  or  indemnification  of  Kleinwort  Sons  &  Co.  or 
their  agents  in  that  behalf  take  up  the  said  bills  of  lading 
and  thus  be  enabled  thereon  to  take  the  goods.  No  pay- 
ment whatever  has  been  made  to  Messrs.  Kleinwort  Sons 
&  Co.,  or  their  agents,  on  account  of  the  payments  made 
by  them  through  the  said  advances  by  said  Don  Pedro 
Pages,  or  by  any  person  on  his  behalf,  or  otherwise,  and 
the  said  Kleinwort  Sons  &  Co.  have  been  and  are  wholly 
unindemnified  in  respect  of  their  said  payments  except  so 
far  as  the  proceeds  of  said  cargo  and  the  insurance  thereon 
which  as  the  owners  of  the  said  goods  they  have  become 
entitled  to  collect,  thereby  subrogating  to  their  own  right 
to  the  extent  of  such  payments  the  insurers  of  the  said 
goods." 

The  ship's  manifest  appears  to  have  been  signed  by 
Maristany,  her  master,  at  Montevideo,  on  March  15,  1898, 
and  was  vised  by  the  Spanish  consul  at  that  port  the  pre- 
vious day.  It  described  the  ship's  destination  as  Havana, 
and  her  cargo  as  made  up  of  two  lots  of  jerked  beef  con- 
taining 248,076  kilos  and  29,970  kilos  respectively,  and 
one  lot  of  garlic  containing  19,980  strings,  all  shipped  by 
Gibernau  and  Company,  "to  order."  On  March  14,  Mari- 
statiy  issued  three  bills  of  lading,  in  which  it  was  stated 
that  the  shipments  were  received  from  Gibernau  and  Com- 
pany for  transportation  to  Havana  "for  account  and  at 
the  risk  of  whom  it  may  concern ; "  one  of  the  bills  covering 
a  shipment  of  165,384  kilos  of  jerked  beef;  another  of 
110,256  kilos  of  jerked  beef;  and  the  third  of  19.980 
bunches  of  garlic. 

March  15,  Gibernau  and  Company  drew  this  hill  of 
exchange: 

"No.  128.  Montevideo,  March  15,  1898.  For  £2714 
13  8.  Ninety  days  after  sight  you  will  please  pay  for  this 


150 

o£  tirst  of  exchange  (the  second  and  third  being  unpaid),  to 
the  order  of  the  London  River  Plate  Bank,  L'd,  the  sum 
of  £2714  13  8,  value  received,  which  you  will  charge  to 
the  account  of  Pedro  Pages  of  Havana  as  per  advice. 

"PLA  GIBERNAU  &  Co. 

"To  Messrs.  Klein  wort  Sons  &  Co.,  London. " 
On  the  same  day  Maristany  drew  this  bill  of  exchange: 
"No.  129.     Montevideo,  March  15,  1898.     For  £3583 
11  6.     Ninety  days  after  sight  you  will  please  pay  for  this 
first  of  exchange  (the  second  and  third  being  unpaid),  to 
the  order  of  Pla  Giber nau  &  Co.  the  sum  of  £3583  11  6, 
invoice  value  of  jerked  beef,  per  Carlos  F.  Roses,  which 
you  will  charge  to  the  account  of  P.  Roses  Valenti.  of 
Barcelona,  as  per  advice. 

"YsiDRO  BERTRAN  MARISTANY. 
"To  Messrs.  Kleinwort  Sons  &  Co.,  London." 
This  was  indorsed  by  Gibernau  and  Company. 
Valenti  was  the  managing  owner  of  the  Carlos  F.  Roses. 
Both  bills  of  exchange  passed  through  the  London  River 
Plate  Bank,  L't'd,  at  Montevideo.  On  April  6  they  were 
accepted  by  Kleinwort  Sons  and  Company,  and  on  May  9 
were  paid  under  discount  by  that  firm.  Harcke  alleged 
that  at  the  time  of  the  acceptance  of  these  bills  of  exchange, 
bills  of  lading  covering  the  shipments  of  the  garlic,  and 
the  jerked  beef  shipped  for  account  and  l>y  order  of 
Pages,  indorsed  in  blank  by  Gibernau  and  Company,  were 
delivered  to  claimants,  as  security  for  payment  of  the  bills 
of  exchange;  and  that  thereafter  the  bill  of  lading  cover- 
ing the  shipment  of  jerked  beef  made  for  the  account  and 
by  the  order  of  the  Carlos  F.  Roses  was  delivered  in  like 
manner,  but  affiant  did  not  state  when.  It  was  also  alleged 
that  on  April  9  the  bills  of  lading  and  invoices,  covering 
the  shipment  of  garlic  and  Pages's  share  of  the  jerked  beef 
wero  mailed  by  Kleinwort  Sons  and  Company  to  Gelak 
and  Compam1,  bankers  of  Havana,  to  be  held  until  the 
bills  of  exchange  charged  to  the  account  of  Pages  should 
be  paid.  Neither  the  instructions  sent  to  Gehik  and  Corn- 
pan}7,  nor  a  copy  of  them,  were  produced.  Harcke  fur- 
ther alleged  that  the  bills  of  lading  and  the  invoices 
covering  the  vessel's  share  of  the  shipment  of  jerked  beef 
were  retained  by  Kleinwort  Sons  and  Company  i;  pending 
the  disposal  of  the  said  cargo."  On  May  17,  the  da}'  of 
the  capture,  Kleinwort  Sons  and  Compan}'  cabled  Gelak 
and  Company  requesting  them  to  return  the  bills  of  lad- 
ing and  invoices,  which  had  been  forwarded  on  April  9. 


151 

June  9,  Gelak  and  Company  replied  that  the  bills  and  in-  th|^^ent  of 
voices  had  not  been  received.  On  October  21  claimants 
produced  these  bills  of  lading,  alleging  that  they  had  been 
received  from  Gelak  and  Company  on  October  18,  and 
that  neither  Pages,  Gibernau  and  Company,  nor  the  own- 
ers of  the  Carlos  F.  Roses  had  paid  claimants  anything  for 
or  on  account  of  their  acceptance  and  payment  of  the  bills 
of  exchange.  The  cause  of  the  cargo  was  heard  a  second 
time  on  the  claim,  test  affidavit,  and  Harcke's  affidavits, 
and  a  decree  was  entered  for  the  payment  to  claimants  of 
the  proceeds  of  sale:  from  which  decree  the  United  States 
took  this  appeal. 

MR.   CHIEF  JUSTICE    FULLER,  after  stating   the   case,    opinion, 
delivered  the  opinion  of  the  court. 

The  President's  proclamation  of  April  26, 1898,  declared 
the  policy  of  the  Government  in  the  conduct  of  the  war 
would  be  to  adhere  to  the  rules  of  the  Declaration  of 
Paris  therein  set  forth,  one  of  them  being  thus  expressed: 
"Neutral  goods,  not  contraband  of  war,  are  not  liable  to 
confiscation  under  the  enemy's  flag." 

The  question  is  whether  this  cargo  when  captured  was 
enemy  property  or  not.  The  District  Court  held  that  both 
the  title  and  right  of  possession  were  in  these  neutral 
claimants  at  the  time  of  the  capture,  "as  evidenced  by  the 
indorsed  bills  of  lading  and  the  paid  bills  of  exchange,'' 
and,  therefore,  entered  the  decree  in  claimant's  favor. 
As  the  vessel  was  an  enemy  vessel  the  presumption  was  cargoon  enemy 
that  the  cargo  was  enemj^'s  property,  and  this  could  only  sumatJiy  enenfy 
be  overcome  by  clear  and  positive  evidence  to  the  con- 
trary. The  burden  of  proving  ownership  rested  on 
claimants.  T/ie  London  Packet,  5  Wheat.  132;  The  Sally 
Magee,  3  Wall.  451;  The  Bcnlto  Estenger,  176  U.  S.  568. 

Further  proofs  on  claimant's  behalf  were  ordered  to  be 
furnished  within  sixty  days  from  June  2;  and  the  time  was 
enlarged  to  August  31;  and  again  to  October  15.  The 
proofs  tendered  were  three  affidavits  of  claimants'  man- 
ager sworn  to  September  27,  October  12  and  October  21, 
1898,  respectively,  with  accompanying  papers.  Such  e.i- 
jnirt<>  statements,  where  further  proofs  have  been  ordered, 
though  admitted  without  objection,  are  obviously  open  to 
criticism,  but  without  pausing  to  comment  on  these  in 
that  aspect,  we  inquire  whether  they  satisf}-  the  require- 
ments of  the  law  of  prize  in  respect  of  the  establishment 
of  the  neutral  character  of  this  cargo  under  the  circum- 
stances. 


152 

ci^mnstances      Gibernau  and  Company  were  citizens  of  a  neutral  state; 

owneraMpo" the  tnev  were  evidently  commission  merchants,  and  in   each 

cargo-  .  invoice  a  charge  for  their  commission  on  the  shipment 

appears.  The  invoices  expressly  provided  that  the  goods 
were  shipped  "to  order  for  account  and  risk  and  by  order 
of  the  parties  noted  below. ' '  The  consignees  noted  below  in 
the  invoice  of  the  jerked  beef  were  the  owners  of  the  ves- 
sel, "the  expedition  or  voyage  of  the  'Carlos  F.  Hoses ": 
and  "Mr.  Pedro  Pages  of  Havana,"  all  Spanish  subjects. 
The  consignees  of  the  garlic  were  "Mr.  Pedro  Pages" 
and  "the  undersigned;"  that  is,  Gibernau  and  Compan}'. 
There  were  three  sets  of  bills  of  lading  issued  by  the  master 
to  Gibernau  rfnd  Company.  One  covered  the  portion  of  the 
shipment  of  jerked  beef  made  for  the  account  of  the  vessel; 
another,  the  portion  of  that  shipment  made  for  the  account 
of  Pages;  the  third,  the  shipment  of  garlic  made  for  tha 
joint  account  of  Pages  and  Gibernau  and  Company.  All 
the  bills  set  forth  that  the  goods  were  taken  for  the  account 
and  at  the  risk  of  whom  it  might  concern.  The  ship's 
manifest  was  signed  under  date  March  15,  and  the  destina- 
tion cf  the  cargo  was  stated  thus:  "  Shipped  by  Pla  Giber- 
nau Co.  To  order."  The  vise  of  the  consul  of  Spain, 
dated  the  day  before,  was:  "Good  for  Havana,  with  a 
cargo  of  jerked  beef  and  garlic."  As  the  vessel  had  a  share 
in  the  shipment  of  jerked  beef,  and  the  consignees  were 
named  in  the  invoices,  which  set  forth  that  the  shipments 
were  made  by  their  orders  for  their  account  and  at  their 

•wlseem>n1eoust  ™k,  it  would  appear  that  the  manifest  was  erroneous,  and 
^is  and  the  fact  that  the  bills  of  lading  stated  that  the 
goods  were  taken  "for  account  of  whom  it  may  concern," 
should  be  especially  noted,  since  the  reasonable  inference 
is  that  the  consignees  must  have  been  known  to  the  master. 
And  it  also  should  be  observed  that  there  was  no  charter 
party,  which  would  have  necessarily  revealed  the  engage- 
ments of  the  vessel,  but  which  natural  \y  would  not  be  entered 
into  if  the  commercial  venture  was  that  of  her  owner. 
The  general  rule  is  that  a  consignor  on  delivering  goods 
ordered,  to  a  master  of  a  ship,  delivers  them  to  him  as  the 
agent  of  the  consignee  so  that  the  property  in  them  is 
vested  in  the  latter  from  the  moment  of  such  delivery, 
though  the  rule  may  be  departed  from  by  agreement  or 
by  a  particular  trade  custom,  whereby  the  goods  are 
shipped  as  belonging  to  the  consignor  and  on  his  account 
and  risk.  We  think  that  on  the  face  of  the  papers  it  must 
be  concluded  that  when  these  goods  were  delivered  to  the 


153 

vessel  they  became  the  property  of  the  consignees  named 
in  the-  invoices.  Hence  the  shipments  of  jerked  beef  must 
be  regarded  as  owned  by  Pages,  or  by  him  and  the  owners 
of  the  Carlos  F.  Roses.  One  half  of  the  garlic  belonged 
to  Pages,  the  remaining  half  was  consigned  to  Gibernau 
and  Company,  and  they  did  not  claim,  and  have  not  claimed 
it,  nor  was  it  asserted  that  Gibernau  and  Company  retained 
the  ownership  of  any  part  of  the  cargo  after  its  delivery  to 
the  vessel.  Property  so  long  unclaimed  may  be  treated  as  un^a?med  may 
in  an}'  view  good  prize.  The  Adeline,  9  Cranch,  2-14;  T 
Harrison,  1  Wheat.  298.  In  fact,  claimants  admit  that  the 
whole  cargo  "was  ultimately  destined  for  Don  Pedro 
Pages  of  Havana."  The  bill  of  exchange  drawn  by  Giber- 
nau and  Company  named  Kleinwort  Sons  and  Company  as 
acceptors,  and  directed  them  to  charge  the  amount  to  the 
account  of  "Pedro  Pages  of  Havana  as  per  advice."  The 
bill  drawn  by  Maristany  also  named  Kleinwort  Sons  and 
Company  as  drawees,  and  directed  them  to  charge  the 
amount  "to  P.  Roses  Valenti  of  Barcelona  as  per  advice." 
In  neither  of  them  was  there  any  reference  to  the  cargo, 
and,  so  far  as  appeared,  the  amounts  were  at  once  charged 
up  to  the  persons  named. 

Harcke  said  that  when  the  bills  of  exchange  were  ac- 
cepted by  Kleinwort  Sons  and  Company  bills  of  lading 
covering  the  shipment  of  110,256  kilos  of  jerked  beef  and 
of  the  garlic  were  delivered  to  them  in  consideration  of  the 
acceptance  of  the  draft  for  £2714  13  8,  and  that  bills  of 
lading  for  the  165,354  kilos  of  jerked  beef  were  afterwards 
delivered  in  consideration  of  the  acceptance  of  the  draft 
for  £3583  11  6.  But  the  date  of  the  latter  delivery  was 
not  given,  and  it  affirmatively  appeared  that  whenever 
these  bills  of  lading  reached  Kleinwort  Sons  and  Company 
they  were  retained  "pending  the  disposal  of  the  cargo/' 
Both  drafts  were  accepted  April  6,  and  the  bills  of  lading 
for  the  110,256  kilos  of  jerked  beef  and  for  the  garlic  were 
forwarded  to  Gelak  and  Company  on  April  9,  but  the  bills 
for  the  165,384  kilos  of  jerked  beef,  whenever  received, 
never  were.  The  instructions  to  Gelak  and  Company  were 
not  put  in  evidence,  nor  any  of  the  correspondence  with 
Valenti  or  Pages.  In  June,  Gelak  and  Company  cabled 
that  the  bills  sent  to  them  had  not  been  received;  in  Sep- 
tember they  turned  up,  but  no  information  was  afforded 
as  to  how  they  came  into  Gelak  and  Company's  possession; 
and  in  October  duplicates  were  also  received  by  claimants 
from  Gelak  and  Company,  with,  so  far  as  disclosed,  no 


154 

accompanying-  explanation.  And  Harcke's  affidavits  failed 
to  set  forth  the  relations,  transactions  or  correspondence 
existing  and  passing  between  claimants  and  the  en  em}' 
owners  of  the  cargo.  This,  although,  as  Sir  William  Scott 
said  in  The  Magnus,  1  C.  Rob.  31,  "the  correspondence 
of  the  parties,  the  orders  for  purchase,  and  the  mode  of 
payment,  would  have  been  the  points  to  which  the  court 
would  have  looked  for  satisfaction." 

The  affidavits  alleged  that  the  claimants  were  wholly 
unindemnified  except  by  the  proceeds  of  the  cargo  and  tho 
insurance  thereon,  by  which  the  insurers  were  subrogated 
to  their  own  rights,  but  did  not  state  whether  the  insur- 
ance contemplated  a  war  risk,  or  why  the  bills  of  lading 
for  the  larger  portion  of  the  beef  were  retained  by  claim- 
ants and  not  sent  to  the  Havana  agents,  or  whether  the}' 
retained  them  upon  instructions  from  the  enemy  owners; 
or  whether  they  came  to  claimants  from  Spain;  nor  did 
anything  appear  in  respect  of  the  interest  of  Pages  as  con- 
signee for  himself,  or  in  a  representative  capacity;  nor  of 
Valenti,  the  owner  of  the  enemy  vessel,  who  resided  at 
Barcelona.  The  evidence  of  enemy  interest  arising  on  the 
face  of  the  documents  called  on  the  asserted  neutral  owners 
to  prove  beyond  question  their  right  and  title.  And  still 
for  all  that  appears,  the  documents  may  have  been  sent 
merely  to  facilitate  delivery  to  the  agent  of  the  enem}r 
owners. 

Bins  01  lading  Bills  of  lading  stand  as  the  substitute  and  representative 
egotiabL  qnasi  of  the  goods  described  therein,  and  while  quasi  negotiable 
instruments,  are  not  negotiable  in  the  full  sense  in  which 
that  term  is  applied  to  bills  and  notes.  The  transfer  of 
the  bill  passes  to  the  transferee  the  transferror's  title  to 
the  goods  described,  and  the  presumption  as  to  ownership 
arising  from  the  bill  may  be  explained  or  rebutted  by 
other  evidence  showing  where  the  real  ownership  lies.  A 
pledgee  to  whom  a  bill  of  lading  is  given  as  security  gets 
the  legal  title  to  the  goods  and  the  right  of  possession 
only  if  such  is  the  intention  of  the  parties,  and  that  inten- 
tion is  open  to  explanation.  Inquiry  into  the  transaction 
in  which  the  bill  originated  is  not  precluded  because  it 
came  into  the  hands  of  persons  who  may  have  innocently 
paid  value  for  it.  Pollard  v.  Vinton,  105  U.  S.  7;  Shaw 
v.  Railroad  Company,  101  U.  S.  557. 

Generally  speaking,  in  the  purchase  and  shipment  of 
goods  on  bills  of  lading  attached  to  bills  of  exchange 
drawn  against  them,  the  bill  of  exchange  is  drawn  on  the 


155 

consignee  and  purchaser,  and  sent  forward  for  collection 
through  the  banker  at  the  place  of  shipment,  who  advances 
on  the  draft,  and  thereafter  realizes  on  it  through  his  cor- 
respondents, or  by  sale  as  exchange;  or  the  banker  at 
some  other  point,  or  at  the  general  exchange  center,  may 
be  the  drawee  of  the  bill  of  exchange  instead  of  the  con- 
signee or  real  owner,  the  banker  standing  in  the  place  of 
the  owner,  in  virtue  of  some  arrangement  with  his  cus- 
tomer, or  on  the  faith  of  a  running  account,  the  pledge  of 
other  securities,  or  the  customer's  personal  liability,  so 
that  the  draft  may  be  charged  up  at  once,  and,  at  all 
events,  the  control  of  the  goods  is  not  the  sole  reliance  of 
the  banker. 

In  the  case  in  hand,  the  captors  succeeded  to  the  enemy 
owners'  rights,  and  could  have  introduced  evidence  as  to 
the  real  nature  of  the  transactions,  and  so  have  rebutted 
any  presumption  in  favor  of  the  bankers  as  purchasers  for 
value,  and  although  they  did  not  do  this,  the  question  still 
remains  that  in  prize  courts  it  is  necessary  for  claimants 
to  show  the  absence  of  anything  to  impeach  the  transac- 
tion, and  at  least  to  disclose  fully  all  the  surrounding  cir- 
cumstances. And  this  we  think  claimants  have  failed  to  do. 

The  right  of  capture  acts  on  the  proprietary  interest  of  notetaffecteiright 
the  thing  captured  at  the  time  of  the  capture  and  is  riotof 
affected  b}r  the  secret  liens  or  private  engagements  of  the 
parties.  Hence  the  prize  courts  have  rejected  in  its  favor 
the  lien  of  bottomry  bonds,  of  mortgages,  for  supplies,  and 
of  bills  of  lading.  The  assignment  of  bills  of  lading  trans- 
fers the  jus  ad  rem,  but  not  necessarily  the  jus  in  rent. 
The,  jus  in  re  or  in  rem,  implies  the  absolute  dominion— 
the  ownership  independently  of  any  particular  relation 
with  another  person.  The  jus  ad  rein  has  for  its  founda- 
tion an  obligation  incurred  by  another.  Sand.  Inst.  Just., 
Introd.,  xlviii;  2  Marcade,  Expl.  du  Code  Napoleon,  350; 
•2  Bouvier,  (Rawle's  Revision,)  73;  The  Young  Mechanic, 
'2  Curtis,  404. 

Claimants  did  not  obtain  the  jus  in  rem,  and,  according 
to  the  great  weight  of  authority,  the  right  of  capture  was 
superior. 

In  The  Frances,  8  Cranch,  418,  a  New  York  merchant  T/"  '"'»<"• 
claimed  two  shipments  of  goods,  one  in  consequence  of  an 
advance  made  to  enemy  shippers  by  him  in  consideration 
of  the  consignment,  and  the  other  in  virtue  of  a  general 
1  rdhuice  of  account  due  to  him  from  the  shippers  as  their 
factor.  Both  consignments  were  at  the  risk  of  the  enemy 


156 

shippers.     The  goods  were  condemned  as  enemy  property, 
and  the  sentence  was  affirmed.     This  court  said: 

4'The  doctrine  of  liens  seems  to  depend  chiefly  upon  the 

prize  courtT8  m  ru^es  °^  jurisprudence  established  in  different  countries. 
There  is  no  doubt  but  that,  agreeably  to  the  principles  of 
the  common  law  of  England,  a  factor  has  a  lien  upon  the 
goods  of  his  principal  in  his  possession,  for  the  balance  of 
account  due  to  him;  and  so  has  a  consignee  for  advances 
made  by  him  to  the  consignor.  .  .  .  But  this  doctrine 
is  unknown  in  prize  courts,  unless  in  very  peculiar  cases, 
where  the  lien  is  imposed  by  a  general  law  of  the  mer- 
cantile world,  independent  of  any  contract  between  the 
parties.  Such  is  the  case  of  freight  upon  enemies'  goods 
seized  in  the  vessel  of  a  friend,  which  is  always  decreed  to 
the  owner  of  the  vessel.  .  .  .  But  in  cases  of  liens  created 
by  the  mere  private  contract  of  individuals,  depending  upon 
the  different  laws  of  different  countries,  the  difficulties 
which  an  examination  of  such  claims  would  impose  upon 
the  captors,  and  even  upon  the  prize  courts,  in  deciding 
upon  them,  and  the  door  which  such  a  doctrine  would  open 
to  collusion  between  the  enemy  owners  of  the  property  and 
neutral  claimants,  have  excluded  such  cases  from  the  con- 
sideration of  those  courts.  .  .  .  The  principal  strength 
of  the  argument  in  favor  of  the  claimant  in  this  case, 
seemed  to  be  rested  upon  the  position,  that  the  consignor 
.in  this  case  could  not  have  countermanded  the  consign- 
ment after  delivery  of  the  goods  to  the  master  of  the  ves- 
sel; and  hence  it  was  inferred  that  the  captor  had  no  right 
to  intercept  the  passage  of  the  property  to  the  consignee. 
This  doctrine  would  be  well  founded,  if  the  goods  had 
been  sent  to  the  claimant  upon  his  account  and  risk,  ex- 
cept in  the  case  of  insolvency.  But  when  goods  are  sent 
upon  the  account  and  risk  of  the  shipper,  the  delivery  to 
the  master  is  a  delivery  to  him  as  agent  of  the  shipper, 
not  of  the  consignee;  and  it  is  competent  to  the  consignor, 
at  any  time  before  actual  delivery  to  the  consignee,  to 
countermand  it,  and  thus  to  prevent  his  lien  from  attach- 
ing. Upon  the  whole,  the  court  is  of  opinion  that,  upon 
the  reason  of  the  case,  as  well  as  upon  authority,  this  claim 
cannot  be  supported,  and  that  the  sentence  of  the  court 
below  must  be  affirmed  with  costs." 

siwaw  Mary  and  In  The  Mary  and  Susan,  I  Wheat.  25,  an  American  mer- 
chantman bound  from  Liverpool  to  New  York  was  cap- 
tured by  a  privateer  of  the  United  States  during  the  war 
of  1812.  In  her  cargo  were  certain  goods  which  had  been 


157 

shipped  by  British  subjects  to  citizens  of  the  United  States, 
in  pursuance  of  orders  received  before  the  declaration  of 
war.  Previous  to  the  execution  of  the  orders  the  shippers 
became  embarrassed,  and  assigned  the  goods  to  certain 
bankers  to  secure  advances  made  by  them,  with  a  request 
to  the  consignees  to  remit  the  amount  to  the  bankers,  who 
also  repeated  the  same  request,  the  invoices  being  for  gain 
and  risk  of  the  consignees,  and  stating  the  goods  to  be 
then  the  property  of  the  bankers,  and  it  was  held  that  the 
goods  having  been  purchased  and  shipped  in  pursuance  of 
orders  from  the  consignees,  the  property  was  originally 
vested  in  them,  and  was  not  devested  by  the  intermediate 
assignment,  which  was  merely  intended  to  transfer  the 
right  to  the  debt  due  from  the  consignees. 

In  The  Hampton,  5  Wall.  372,  the  schooner  Hampton  1 
and  her  cargo  had  been  captured,  libelled  and  condemned 
as  prize  of  war.  The  master  of  the  vessel  was  her  owner, 
but  interposed  no  claim;  nor  did  anyone  claim  the  cargo. 
One  Brinckley  appeared  and  claimed  the  vessel  as  mort- 
gagee. The  1)0  n  a  fides  of  this  mortgage  was  not  disputed; 
nor  that  he  was  a  Io3'al  citizen.  But  his  claim  was  dis- 
missed, and,  the  case  having  been  certified  to  this  court,  it 
was  held  that  in  proceedings  in  prize,  and  under  the  prin- 
ciples of  international  law,  mortgages  on  vessels  captured 
jure  belli  are  to  be  treated  only  as  liens  subject  to  be  over- 
ridden by  the  capture.  Mr.  Justice  Miller  said: 

"The  ground  on  which  appellant  relies  is,  that  the  mort- 
gage, being  a^'^.s-  in  r<>  held  by  an  innocent  party,  is  some- 
thing more  than  a  mere  lien,  and  is  protected  by  the  law 
of  nations.     The  mortgagee  was  not  in  possession  in  this 
case,  and  the  real,  owner  who  was  in  possession  admits 
that  his  vessel  was  in  delicto  by  failing  to  set  up  any  claim 
for  her.     It  would  require   pretty  strong  authority  to 
induce  us  to  import  into  the  prize  courts  the  strict  com- 
mon law  doctrine,  which  is  sometimes  applied  to  the  rela- 
tion of  a  mortgagee  to  the  property  mortgaged.     It  is  ye^eisgcfptured 
certainly  much  more  in  accordance  with  the  liberal  prin-Jmorebfhanr?iens 
ciples  which  govern  admiralty  courts  to  treat  mortgages  overridden10  by 
as  equity  courts  treat  them,  as  a  mere  security  for  thecapture' 
debt  for  which  they  are  given,  and  therefore  no  more 
than  a  lien  on  the  property  conveyed.     But  it  is  unnec- 
essary to  examine   this   question    minutely,   because  an 
obvious  principle  of  necessity  must  forbid  a  prize  court 
from  recognizing  the  doctrine  here  contended  for.     If  it 
were  once  admitted  in  these  courts,  there  would  be  an  end 


158 

of  all  prize  condemnation.  As  soon  as  a  war  was  threat- 
ened, the  owners  of  vessels  and  cargoes  which  might  be 
so  situated  as  to  be  subject  to  capture,  would  only  have  to 
raise  a  sufficient  sum  of  money  on  them,  by  bfma  fide 
mortgages,  to  indemnify  them  in  case  of  such  capture.  If 
the  vessel  or  cargo  was  seized,  the  owner  need  not  appear, 
because  he  would  be  indifferent,  having  the  value  of  his 
property  in  his  hands  already.  The  mortgagee  having  an 
honest  mortgage  which  he  could  establish  in  a  court  of 
prize,  would  either  have  the  property  restored  to  him  or 
get  the  amount  of  the  mortgage  out  of  the  proceeds  of  the 
sale.  The  only  risk  run  by  enemy  vessels  or  cargoes  on 
the  high  seas,  or  by  neutrals  engaged  in  an  effort  to  break 
the  blockade,  would  be  the  costs  and  expenses  of  capture 
and  condemnation,  a  risk  too  unimportant  to  be  of  an}T 
value  to  a  belligerent  in  reducing  his  opponent  to  terms. 
The  principle  which  thus  abolishes  the  entire  value  of 
prize  capture  on  the  high  seas,  and  deprives  blockades  of 
all  danger  to  parties  disposed  to  break  them,  can  not  be 
recognized  as  a  rule  of  prize  courts." 

The  Bam.  Jn  The  Battle,  6  Wall.  498,  the  steamer  Battle  and  cargo 

were  captured  on  the  high  seas  as  prize  of  war,  brought 
into  court  and  condemned,  for  breach  of  blockade  and  also 
as  enemy  property.  Two  claims  were  set  up  against  the 
steamer  in  the  court  below,  one  for  supplies,  and  another 
for  materials,  furnished,  and  for  work  and  labor  in  build- 
ing a  cabin  on  the  boat.  These  claims  were  dismissed, 
and  the  decree  affirmed  by  this  court,  Mr.  Justice  Nelson 
delivering  the  opinion,  saying:  "The  principle  is  too  well 
settled  that  capture  as  prize  of  war,  jure  belli,  overrides 
all  previous  liens,  to  require  examination." 

Such  is  the  rule  in  the  British  prize  courts.  The  Tobago, 
5  C.  Rob.  218;  The  Marianna,  6  C.  Rob.  24:  The  Ida, 
Spinks  Prize  Cases,  26. 

The  Tobago.  The  Tobago  was  a  case  of  claim  to  a  captured  French 
vessel,  made  on  behalf  of  a  British  merchant  as  the  holder 
of  a  bottouny  bond  executed  and  delivered  to  him  by  the 
master  of  the  ship  before  the  commencement  of  hostilities 
between  Great  Britain  and  France.  Sir  William  Scott 
said: 

"The  integrit}7  of  this  transaction  is  not  impeached,  but 
I  am  called  upon  to  consider  whether  the  court  can,  con- 
sistently with  the  principles  of  law  that  govern  its  prac- 
tice, afford  relief.  It  is  the  case  of  a  bottomry  bond, 
given  fairly  in  times  of  peace,  without  any  view  of  infring- 


159 

ing  the  rights  of  war,  to  relieve  a  ship  in  distress.  .  .  , 
But  can  the  court  recognize  bonds  of  this  kind  as  titles  of 
property,  so  as  to  give  persons  a  right  to  stand  in  judg- 
ment, and  demand  restitution  of  such  interests  in  a  court 
of  prize  ?  .  .  .  The  person  advancing  money  on  bonds  of 
this  nature,  acquires,  by  that  act,  no  property  in  the  ves- 
sel; he  acquires  the  jus  in  m/z,  but  not  the  jus  in  re,  until 
it  has  been  converted  and  appropriated  hy  the  final  process 
of  a  court  of  justice.  .  .  .  But  it  is  said  that  the  captor 
takes  cum  onere,  and,  therefore,  that  this  obligation  would 
devolve  upon  him.  That  he  is  held  to  take  cum  (mere  is 
undoubtedly  true,  as  a  rule  which  is  to  be  understood  to 
apply  where  the  onus  is  immediately  and  visibly  incum- 
bent upon  it.  A  captor  who  takes  the  cargo  of  an  enemy 
on  board  the  ship  of  a  friend,  takes  it  liable  to  the  freight 
due  to  the  owner  of  the  ship;  because  the  owner  of  the 
ship  has  the  cargo  in  his  possession,  subject  to  that  demand 
by  the  general  law,  independent  of  all  contract.  .  .  .  But 
it  is  a  proposition  of  a  much  wider  extent,  which  affirms 
that  a  mere  right  of  action  is  entitled  to  the  same  favor- 
able consideration  in  its  transfer  from  a  neutral  to  a  cap- 
tor. It  is  very  obvious  that  claims  of  such  a  nature  may 
be  so  framed  as  that  no  powers  belonging  to  this  court  can 
enable  it  to  examine  them  with  effect.  They  are  private 
contracts,  passing  between  parties  who  may  have  an  inter- 
est in  colluding;  the  captor  has  no  access  whatever  to  the 
original  private  understanding  of  the  parties  in  forming 
such  contracts;  and  it  is,  therefore,  unfit  that  he  should 
be  affected  by  them.  His  rights  of  capture  act  upon  the 
property,  without  regard  to  secret  liens  possessed  by  third 
parties.  ...  I  am  of  opinion  that  there  is  no  instance  in 
which  the  court  has  recognized  bonds  of  this  kind  as  titles 
of  property,  and  that  they  are  not  entitled  to  be  recog- 
nized as  such  in  the  prize  courts." 

In  The  Marianna,  the  vessel  had  been  sold  at  Buenos  The 
Ay  res  by  American  owners  to  a  Spanish  merchant;  the 
purchase  mone}',  however,  had  not  been  paid  in  full,  but 
\\  as  to  be  satisfied  out  of  the  proceeds  of  a  quantity  of  tal- 
low on  board  the  vessel  for  sale,  consigned  to  the  agents 
of  the  American  vendors  at  London.  The  vessel  was 
seized  on  her  voyage  to  England,  documented  as  belong- 
ing to  a  Spanish  merchant,  and  sailing  under  the  flag  and 
pass  of  Spain.  The  former  American  proprietors  made 
claim  to  the  cargo,  but  the  claim  was  disallowed  because 


160 

the  claimants'  interest  was  not  sufficient  to  support  it;  and 
the  court  said: 

"Captors  are  supposed  to  lay  their  hands  on  the  gross 
tangible  property,  on  which  there  may  be  many  just  claims 
outstanding,  between  other  parties,  which  can  have  no 
operation  as  to  them.  If  such  a  rule  did  not  exist,  it 
would  be  quite  impossible  for  captors  to  know  upon 
what  grounds  the}7  were  proceeding  to  make  any  seizure. 
The  fairest  and  most  credible  documents,  declaring  the 
property  to  belong  to  the  enemy,  would  only  serve  to  mis- 
lead them,  if  such  documents  were  liable  to  be  overruled 
by  liens  which  could  not  in  any  manner  come  to  their 
knowledge.  It  would  be  equally  impossible  for  the  court, 
which  has  to  decide  upon  the  question  of  property,  to 
admit  such  considerations.  The  doctrine  of  liens  depends 
very  much  upon  the  particular  rules  of  jurisprudence 
which  prevail  in  different  countries.  To  decide  judicially 
on  such  claims,  would  require  of  the  court  a  perfect  knowl- 
edge of  the  law  of  covenant,  and  the  application  of  that 
law  in  all  countries,  under  all  the  diversities  in  which  that 
law  exists.  From  necessity,  therefore,  the  court  would 
be  obliged  to  shut  the  door  against  such  discussions  and 
to  decide  on  the  simple  title  of  property,  with  scarcely 
any  exceptions.  ...  As  to  the  title  of  property  in  the 
goods,  which  are  said  to  have  been  going  as  the  funds  out 
of  which  the  pa}7ment  for  the  ship  was  to  have  been  made. 
That  they  were  going  for  the  payment  of  a  debt  will  not 
alter  the  property;  there  must  be  something  more.  Even 
if  bills  of  lading  are  delivered,  that  circumstance  will  not 
be  sufficient,  unless  accompanied  with  an  understanding 
that  he  who  holds  the  bill  of  lading  is  to  bear  the  risk  of 
the  goods  as  to  the  voyage,  and  as  to  the  market  to  which 
they  are  consigned;  otherwise,  though  the  security  may 
avail  pro  tanto,  it  can  not  be  held  to  work  any  change  in 
the  proper ty." 

The  Ida.  These  cases  were  cited  by  Dr.  Lushington  in  The  Ida  as 

settling  the  law.  In  that  case,  claim  was  made  by  a  neu- 
tral merchant  to  a  cargo  of  coffee  which  had  been  con- 
signed to  him  by  an  enemy  on  the  credit  of  certain  advances, 
as  security  for  pa}Tment  of  which  bills  of  lading  covering 
the  cargo  had  been  delivered  to  him.  But  the  court  de- 
clined to  recognize  the  lien,  and  condemned  the  cargo  as 
enemy  property.  Dr.  Lushington  referred  to  The  San 
Jox,'  Indiana  and  Cargo  2  Gallison,  '267,  and  subscribed  to 


161 

what  was  there  said  by  Mr.  Justice  Story,  but  thought 
his  remarks  inapplicable  to  the  case  in  hand. 

The  case  referred  to  was  affirmed  by  this  court.  1 
Wheat.  208.  Goods  were  shipped  by  Dyson,  Brothers 
and  Company  of  Liverpool  on  board  a  neutral  ship  bound 
to  Rio  de  Janeiro,  which  was  captured  and  brought  into 
the  United  States  for  adjudication.  The  invoice  was 
headed:  "Consigned  to  Messrs.  Dyson,  Brothers,  and 
Finnic,  by  order  and  for  account  of  J.  Lizaur."  In  a  let- 
ter accompanying  the  bill  of  lading  and  invoice,  Dyson, 
Brothers  and  Company  wrote  Dyson,  Brothers,  and  Finnic: 
"For  Mr.  Lizaur  we  open  an  account  in  our  books  here, 
and  debit  him,  etc.  We  cannot  yet  ascertain  the  proceeds 
of  his  hides,  etc.,  but  find  his  order  for  goods  will  far 
exceed  the  amount  of  these  shipments,  therefore  we  con- 
sign the  whole  to  you,  that  you  may  come  to  a  proper 
understanding  with  him."  The  two  houses  consisted  of 
the  same  persons.  It  was  held  that  the  goods  were,  dur- 
ing their  transit,  the  property  and  at  the  risk  of  the  enemy 
shippers,  and  therefore  subject  to  condemnation.  Lizaur's 
claim  was  rejected,  although  Dyson,  Brothers  and  Com- 
pany had  the  proceeds  of  his  hides  in  their  hands. 

The  Lynchburg,  Blatchford's  Prize  Casete,  57,  and  The 
Amy  Warwick,  2  Sprague,  150,  are  cited  on  behalf  of 
claimants,  but,  as  we  read  them,  they  do  not  sustain  their 
contention.  The  schooner  Lynchburg  with  a  cargo  of 
coffee  had  been  libelled  during  the  civil  war  as  enemy 
property,  and  also  for  an  attempt  to  violate  blockade. 
Brown  Brothers  and  Company,  loyal  citizens,  intervened 
as  claimants  of  2045  bags  of  coffee,  part  of  the  cargo.  The}' 
alleged  that  they  had  made  an  advance  of  credit  to  Max- 
well, Wright  and  Company,  neutral  merchants  of  Rio  de 
Janeiro,  for  the  purchase  of  the  coffee,  under  which  credit 
Maxwell,  Wright  and  Company  drew  drafts  on  Brown 
Brothers  and  Company  for  £6000,  on  the  condition  ex- 
pressed therein  that  the  coffee  purchased  by  claimants 
should  be  held  until  their  advances  were  reimbursed  thereon. 
It  was  admitted  by  the  United  States  attorney  that  1541 
bag*  of  the  coffee  should  be  released  to  Brown  Brothers  and 
Company,  and  that  was  done.  As  to  the  remaining  504 
hags  embraced  in  the  general  claim  of  Brown  Brothers 
and  Company,  in  which  Wortham  and  Company  of  Virginia, 
assorted  an  interest,  it  was  held  by  the  court  that  as  no 
proof  was  given  by  claimants  that  the  value  of  the  1541 
2056—04 11 


162 

bags  restored  to  them  was  not  equivalent  to  the  sum  of 
their  advances  used  in  purchasing  the  whole  1J045  hags, 
,  the  reasonable  presumption  was  that  the  restoration  satis- 
fied the  entire  advance.  And  Judge  Betts  said:  "The 
claim  to  an  absolute  ownership  of  the  2045  bags  was  placed 
before  the  court  in  the  oral  argument,  and  in  the  written 
points  filed  in  the  cause  by  the  counsel  for  the  claimants, 
upon  the  proposition  of  law,  that  a  bill  of  lading,  trans- 
mitted to  them  by  the  shipper  to  cover  advances,  passed 
to  them  the  title  to  the  cargo  purchased  therewith.  If  this 
doctrine  be  correct  as  to  mere  commercial  transactions,  it 
does  not  prevail  in  prize  courts,  in  derogation  of  the  rights 
of  captors,  when  the  interest  of  the  claimants  is  only  a 
debt,  although  supported  by  liens  equitable  and  tacit,  or 
legal  and  positive,  even  of  the  character  of  bottomry  bonds, 
when  not  signified  on  the  ship's  papers  at  the  time  of  her 
capture.  The  Frances,  8  Cranch,  418;  The  Tobago,  5  C.  Rob. 
218;  The  Marianna,  6  C.  Rob.  24.  Here,  the  vessel  was  an 
enemy  bottom;  the  bill  of  lading  consigned  the  cargo  to 
order  or  assigns,  at  large,  at  an  enemy's  port,  and,  on  the 
surrender  of  the  principal  portion  of  the  consignment  to 
the  claimants,  no  other  evidence  was  given  in  establishing 
the  facts  that  the  remainder  of  the  shipment  was  owned  by 
them,  or  yet  stood  under  hypothecation  to  them  on  the 
bill  of  lading."  The  504  bags  were  condemned,  "  because, 
by  intendment  of  law,  that  portion  belonged  to  Wort-ham 
and  Company,  and  was  not  shown  by  the  proofs  to  be 
exempt  from  capture  as  prize." 

The  Amy  War-  In  TJie  Amy  Warwick,  J.  L.  Phipps  and  Company  of 
New  York,  British  subjects,  purchased  4700  bags  of  cof- 
fee, part  of  the  cargo  of  an  enemy  vessel,  which  they 
had  purchased  through  Phipps  Brothers  and  Co.,  their 
firm  at  Rio,  with  funds  of  an  enemy  firm,  and  £2000  of 
their  own  money  by  draft  on  Phipps  and  Co.,  their  firm 
at  Liverpool.  They  took  from  the  master  a  bill  of  lading 
which  stated  that  Phipps  Brothers  and  Company  were 
the  shippers  of  this  coffee,  and  that  it  was  to  be  deliv- 
ered to  their  order.  Indorsed  on  the  bill  of  lading  was  a 
statement  declaring  that  a  portion  of  the  coffee  was  the 
property  of  British  subjects.  Phipps  Brothers  and  Com- 
pany indorsed  the  bill  of  lading  over  to  J.  L.  Phipps  and 
Co.  They  also  delivered  to  the  master  another  part  of 
the  bill  of  lading,  an  invoice  of  the  coffee,  and  a  letter  of 
advice  to  be  conveyed  to  the  firm  in  New  York.  The  let- 
ter stated  that  the  coffee  was  shipped  for  account  of  mer- 


163 

chants  at  Richmond,  Virginia,  and  that  a  bill  of  lading 
would  have  been  sent  to  them  had  it  not  been  deemed 
advisable  by  reason  of  the  unsettled  state  of  political 
affairs,  for  the  better  protection  of  the  property,  and  to 
prevent  privateers  from  molesting  the  vessel,  to  have  it 
certified  on  the  bill  of  lading  that  a  portion  of  the  coffee 
was  British  property,  and  that  this  referred  to  the  portion 
against  which  they  had  valued  on  Liverpool.  It  was  held 
that  the  facts  led  plainly  to  the  conclusion  that  claimants 
ought  to  be  repaid  the  amount  they  had  expended  from 
their  own  funds  in  the  purchase  of  the  coffee  and  that  the 
residue  of  the  proceeds  should  be  condemned.  It  was 
said  that  as  the  coffee  was  purchased  at  Rio  by  the  claim- 
ants, and  shipped  by  them  on  board  the  vessel  under  a 
bill  of  lading  by  which  the  master  was  bound  to  deliver 
it  to  their  order,  and  they  ordered  it  to  be  delivered  to 
J.  L.  Phipps  and  Co.,  that  is,  to  themselves,  they  were 
the  legal  owners  of  the  property,  and  could  hardly  be  said 
to  have  a  lien  upon  it.  Their  real  character  was  that  of 
trustees  holding  the  legal  title  and  possession  with  a  right 
of  retention  until  their  advances  should  be  paid.  The 
doctrine  of  liens  was  considered,  and  The  Frances,  The 
Tobago,  The  Marianna  and  other  cases  examined.  Judge  Prize  courts 

0  »          .     .          . ,  .,  ,  ,  ,    .  must     look     be- 

oprague  was  or  opinion  that  the  rule  in  such  cases  ought  yond  legal  title 
not  to  be  that  which  stops  at  the  mere  legal  title,  but  that  flciai  interest. 
which  ascertains  and  deals  with  the  real  beneficial  interest, 
"for,  if  the  court  were  never  to  look  beyond  the  legal 
title,  the  result  would  be  that  when  such  title  is  held  by 
an  enemy  in  trust  for  a  neutral,  the  latter  loses  his  whole 
property;  but,  when  the  legal  title  is  in  a  neutral  in  trust 
for  an  enemy,  the  property  is  restored  to  the  neutral,  not 
for  his  benefit,  but  merel}r  as  a  conduit  through  which  it 
is  to  be  conveyed  to  the  enemy.  To  refuse  to  look  beyond 
the  legal  title  is  to  close  our  eyes  for  the  benefit  of  the 
enemy.  It  would  enable  him  always  to  protect  his  prop- 
erty by  simply  putting  it  in  the  name  of  a  neutral  trustee." 

W<>  agree  with  counsel  for  the  United  States  that  not-    Proof  of  neu 
withstanding  the  indorsement  of  Gibernau  and  Company  cient in  this.  use. 
on  the  bills  of  lading,  the  proof  of  a  neutral  title  was  not 
sufficient.     Even  if  when  the  neutral  interest  is  adequately 
proven  to  be  lona  Jide,  the  claim  of  the  captors  ma}^  be 
required  to  3'ield,  yet  in  this  case  the  belligerent  right 
overrides   the   neutral   claim,    which   must    be   regarded 
merely  as  a  debt,  and  the  assignment  as  a  cover  to  an 
enemy  interest. 


164 

Something  was  said  in  argument  in  relation  to  the  char- 
acter of  the  cargo.  It  is  true  that  by  the  modern  law  of 
nations,  provisions,  while  not  generally  deemed  contraband, 
may  become  so,  although  belonging  to  a  neutral,  on  account 
of  the  particular  situation  of  the  war,  or  on  account  of 
their  destination,  as,  if  destined  for  military  use,  for  the 
armj'  or  navy  of  the  enemy,  or  ports  of  naval  or  military 
equipment.  The  Benito  Estenger,  176  U.  S.  568;  The 
Panama,  176  U.  S.  535;  The  Pderhoff,  5  Wall.  28;  Gro- 
tius  De  Jure  Belli  et  Pacis,  lib.  Ill,  c.  1,  §  5;  Hall,  §  236. 

Doubtless,  in  this  instance,  the  concentration  and  accu- 
mulation of  provisions  at  Havana  might  fairly  be  considered 
a  necessary  part  of  Spanish  military  operations,  imminente 
bello,  and  these  particular  provisions  were  perhaps  espe- 
cially appropriate  for  Spanish  military  use;  but  while  these 
features  may  well  enough  be  adverted  to  in  connection 
with  all  the  other  facts  and  circumstances,  we  do  not  place 
our  decision  upon  them. 

judgment.  we  are  of  opinion  that  a  valid  transfer  of  title  to  this 
enemy  property  to  claimants  was  not  satisfactorily  made 
out,  and  that 

The  decree  below  must  be  revised,  and  a  dewee  of 
condemnation  directed  to  be  entered,  and  it  is  so  ordered. 

MR.  JUSTICE  SHIRAS,  with  whom  concurred  MR.  JUS- 
TICE BREWER,  dissenting. 


165 

INTERNATIONAL  BOUNDARY  QUESTIONS. 
TITLE  BY  PRESCRIPTION. 

Article  IV  of  the  Treaty  of  Arbitration  between 
Great  Britain  and  Venezuela,  which  was  ratified  on 
June  14,  1897,  contains  the  following  rules,  which 
are  remarkable  for  limiting-  the  necessary  occupation 
in  country  claimed  by  one  sovereignty  or  the  other 
to  a  period  of  fifty  years: 

In  deciding  the  matters  submitted  the  arbitrators  shall 
ascertain  all  the  facts  which  they  deem  necessary  to  a 
decision  of  the  controversy  and  shall  be  governed  by  the 
following  rules,  which  are  agreed  upon  by  the  high  con- 
tracting parties  as  rules  to  be  taken  as  applicable  to  the 
case,  and  by  such  principles  of  international  law  not  incon- 
sistent therewith  as  the  arbitrators  shall  determine  to  be 
applicable  to  the  case. 

RULES. 

(a)  Adverse  holding  or  prescription  during  a  period  of 
fifty  years  shall  make  a  good  title.     The  arbitrators  may 
deem  exclusive  political  control  of  a  district,  as  well  as 
actual  settlement  thereof,  sufficient  to  constitute  adverse 
holding  or  to  make  title  by  prescription. 

(b)  The  arbitrators  may  recognize  and  give   effect  to 
rights  and  claims  resting  on  any  other  ground  whatever, 
valid  according  to  international  law,  and  on  any  principles 
of  international  law  which  the  arbitrators  may  deem  to  be 
applicable  to  the  case  and  which  are  not  in  contravention 
of  the  foregoing  rule. 

(c)  In  determining  the  boundary  line,  if  territory  of  one 
part\'  be  found  b\r  the  tribunal  to  have  been  at  the  date  of 
this  treaty  in  the  occupation  of  the  subjects  or  citizens  of 
the  other  party,  such  effect  shall  be  given  to  such  occupa- 
tion as  reason,  justice,  the  principles  of  international  law, 
and  the  equities  of  the  case  shall,  in  the  opinion  of  the 
tribunal,  require. 

These  rules  had  been  embodied  in  a  proposed 
treaty  of  arbitration  which  was  agreed  upon  late  in 
189G  by  the  American  Secretary  of  State,  Mr.  Gluey, 
and  the  British  Ambassador,  Sir  Julian  Pauncefote, 
for  the  settlement  of  the  Venezuelan  boundary  dis- 


166 

pute.  They  were  not  altogether  satisfactory  to 
Venezuela  and  were  only  accepted  by  her  after 
considerable  hesitation. 


THE   JURISDICTION   OF   THE  UNITED    STATES   OVER 
THE  BERING  SEA. 

(Fur  Seal  Arbitration:  Proceedings  of  the  Tribunal  of  Arbitration,  vol.  1,  p.  75.) 

The  following  is  the  principal  part  of  the  award 
of  the  Tribunal  of  Arbitration,  made  August  15, 
1893,  under  the  treaty  of  February  29,  1892,  be- 
tween the  United  States  and  Great  Britain: 
Preamble     of     Whereas   bv  a  treaty  between   the   United  States  of 

award.  <*  J 

America  and  Great  Britain,  signed  at  Washington,  Feb- 
ruary 29,  1892,  the  ratifications  of  which  by  the  Govern- 
ments of  the  two  countries  were  exchanged  at  London  on 
May  the  7th,  1892,  it  was,  amongst  other  things,  agreed 
and  concluded  that  the  questions  which  had  arisen  between 
the  Government  of  the  United  States  of  America  and  the 
Government  of  Her  Britannic  Majesty,  concerning  the 
jurisdictionai  iurisdictional  rights  of  the  United  States  in  the  waters  of 

rights  of  United  J         .       ,     o  ,  ,         ,,  ,.  ,    ,, 

states  and  pres-  Bering's  Sea,  and  concerning  also  the  preservation  of  the 
seals  in  Bering  f  ur-seal  in  or  habitually  resorting  to  the  said  sea,  and  the 
rights  of  the  citizens  and  subjects  of  either  country  as 
regards  the  taking  of  fur-seals  in  or  habitually  resorting 
to  the  said  waters,  should  be  submitted  to  a  Tribunal  of 
Arbitration,  to  be  composed  of  seven  Arbitrators,  who 
should  be  appointed  in  the  following  manner — that  is  to 
say:  Two  should  be  named  by  the  President  of  the  United 
States;  two  should  be  named  by  Her  Britannic  Majesty; 
His  Excellency  the  President  of  the  French  Republic 
should  be  jointly  requested  by  the  High  Contracting  Par- 
ties to  name  one;  His  Majesty  the  King  of  Italy  should  be 
so  requested  to  name  one;  His  Majesty  the  King  of  Sweden 
and  Norway  should  be  so  requested  to  name  one;  the  seven 
Arbitrators  to  be  so  named  should  be  jurists  of  distin- 
guished reputation  in  their  respective  countries,  and  the 
selecting  Powers  should  be  requested  to  choose,  if  possible, 
jurists  who  are  acquainted  with  the  English  language; 

And  whereas  it  was  further  agreed  by  Article  II  of  the 
said  Treaty   that  the  Arbitrators  should  meet  at  Paris 


167 

within  twenty  davs  after  the  deliver}*  of  the  Counter-Cases 
mentioned  in  Article  IV,  and  should  proceed  impartially 
and  carefully  to  examine  and  decide  the  questions  which 
had  been  or  should  be  laid  before  them  as  in  the  said 
Treaty  provided  on  the  part  of  the  Governments  of  the 
United  States  and  of  Her  Britannic  Majesty,  respectively, 
and  that  all  questions  considered  by  the  Tribunal,  includ- 
ing the  final  decision,  should  be  determined  by  a  majority 
of  the  Arbitrators; 

And  whereas  by  Article  VI  of  said  Treaty,  it  was  fur- 
ther provided  as  follows: 

In  deciding  the  matters  submitted  to  the  said  Arbitrators,  it  is  agreed    Points  for  sepa- 
that  the  following  five  points  shall  be  submitted  to  them,  in  order rate  decision- 
that  their  award  shall  embrace  a  distinct  decision  upon  each  of  said 
five  points,  to  wit: 

1.  What  exclusive  jurisdiction  in  the  sea  now  known  as  the  Bering's 
Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein,  did  Russia 
assert  and  exercise  prior  and  up  to  the  time  of  the  cession  of  Alaska  to 
the  United  States? 

2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fisheries 
recognized  and  conceded  by  Great  Britain? 

3.  Was  the  body  of  water  now  known  as  the  Bering's  Sea  included  in 
the  phrase  Pacific  Ocean,  as  used  in  the  Treaty  of  1825  between  Great 
Britain  and  Russia;  and  what  rights,  if  any,  in  the  Bering's  Sea  were 
held  and  exclusively  exercised  by  Russia  after  said  Treaty? 

4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction  and  as  to  the  seal 
fisheries  in  Bering's  Sea  east  of  the  water  boundary,  in  the  Treaty 
between  the  United  States  and  Russia  of  the  30th  of  March,  1867, 
pass  unimpaired  to  the  United  States  under  that  Treaty? 

5.  Has  the  United  States  any  right,  and  if  so,  what  right  of  protec- 
tion or  property  in  the  fur-seals  frequenting  the  islands  of  the  United 
States  in  Bering  Sea  when  such  seals  are  found  outside  the  ordinary 
three-mile  limit? 

And  whereas,  by  Article  VII  of  the  said  Treaty,  it  was 
further  agreed  as  follows: 

If  the  determination  of  the  foregoing  questions  as  to  the  exclusive  As  to  concur- 
jurisdiction  of  the  United  States  shall  leave  the  subject  in  such  posi- 
tion that  the  concurrence  of  Great  Britain  is  necessary  to  the  establish- 
ment of  Regulations  for  the  proper  protection  and  preservation  of  the 
fur-seal  in,  or  habitually  resorting  to,  the  Bering  Sea,  the  Arbitrators 
shall  then  determine  what  concurrent  Regulations,  outside  the  juris- 
dictional  limits  of  the  respective  Governments,  are  necessary,  and 
over  what  waters  such  regulations  should  extend; 

The  High  Contracting  Parties  furthermore  agree  to  cooperate  in 
securing  the  adhesion  of  other  Powers  to  such  Regulations; 

And  whereas,  by  Article  VIII  of  the  said  Treaty,  after 
reciting  that  the  High  Contracting  Parties  had  found  them- 
selves unable  to  agree  upon  a  reference  which  should 
include  the  question  of  the  liability  of  each  for  the  injuries 


168 

alleged  to  hav7e  been  sustained  by  the  other,  or  by  its 
citizens,  in  connection  with  the  claims  presented  and 
urged  by  it,  and  that  "they  were  solicitous  that  this 
subordinate  question  should  not  interrupt  or  longer  delay 
the  submission  and  determination  of  the  main  questions," 
the  High  Contracting  Parties  agreed  that  "either  of  them 
might  submit  to  the  Arbitrators  any  question  of  fact  in- 
volved in  said  claims  and  ask  for  a  finding  thereon,  the 
question  of  the  liability  of  either  Government  upon  the 
facts  found  to  be  the  subject  of  further  negotiation;" 
triburna°innel  °f  And  whereas  the  President  of  the  United  States  of 
America  named  the  Honorable  John  M.  Harlan,  Justice 
of  the  Supreme  Court  of  the  United  States,  and  the  Hon- 
orable John  T.  Morgan,  Senator  of  the  United  States,  to 
be  two  of  the  said  Arbitrators,  and  Her  Britannic  Majesty 
named  the  Right  Honorable  Lord  Hannen  and  the  Honor- 
able Sir  John  Thompson,  minister  of  justice  and  attorney- 
general  for  Canada,  to  be  two  of  the  said  Arbitrators,  and 
His  Excellency  the  President  of  the  French  Republic 
named  the  Baron  de  Courcel,  Senator,  Ambassador  of 
France,  to  be  one  of  the  said  Arbitrators,  and  His  Majesty 
the  King  of  Italy  named  the  Marquis  Emilio  Visconti 
Venosta,  former  Minister  of  Foreign  Affairs  and  Senator 
of  the  Kingdom  of  Italy,  to  be  one  of  the  said  Arbitrators, 
and  His  Majesty  the  King  of  Sweden  and  Norway  named 
Mr.  Gregers  Gram,  minister  of  state,  to  be  one  of  the 
said  Arbitrators; 

And  whereas  We,  the  said  Arbitrators,  so  named  and 
appointed,  having  taken  upon  ourselves  the  burden  of 
the  said  Arbitration,  and  having  duly  met  at  Paris,  pro- 
ceeded impartially  and  carefully  to  examine  and  decide  all 
the  questions  submitted  to  us,  the  said  Arbitrators,  under 
the  said  Treaty,  or  laid  before  us  as  provided  in.  the  said 
Treaty  on  the  part  of  the  Governments  of  Her  Britannic 
Majesty  and  the  United  States,  respectively; 

Award.  Now  We,  the  said  Arbitrators,  having  impartially  and 

carefully  examined  the  said  questions,  do  in  like  manner 
by  this  our  Award  decide  and  determine  the  said  questions 
in  manner  following,  that  is  to  say,  we  decide  and  deter- 
mine as  to  the  five,  points  mentioned  in  Article  VI  as  to 
which  our  Award  is  to  embrace  a  distinct  decision  upon 
each  of  them: 

As  to  the  first  of  the  said  five  points,  We,  the  said  Baron 
de  Courcel,  Mr.  Justice  Harlan,  Lord  Hannen,  Sir  John 
Thompson,  Marquis  Visconti  Venosta,  and  Mr.  Gregers 


169 


First  point. 


Gram,  being  a  majority  of  the  said  Arbitrators,  do  decide 
and  determine  as  follows: 

By  the  Ukase  of  1821  Russia  claimed  jurisdiction  in  the 
sea  now  known  as  the  Bering's  Sea  to  the  extent  of  100 
Italian  miles  from  the  coasts  and  islands  belonging  to  her, 
but,  in  the  course  of  the  negotiations  which  led  to  the  con- 
clusion of  the  Treaties  of  1824  with  the  United  States  and 
of  1825  with  Great  Britain,  Russia  admitted  that  her  jur- 
isdiction in  the  said  sea  should  be  restricted  to  the  reach 
of  cannon  shot  from  shore,  and  it  appears  that  from  that 
time  up  to  the  time  of  the  cession  of  Alaska  to  the  United 
States  Russia  never  asserted  in  fact  or  exercised  any  ex- 
clusive jurisdiction  in  Bering's  Sea  or  any  exclusive  rights 
in  the  seal  fisheries  therein  beyond  the  ordinary  limit  of 
territorial  waters. 

As  to  the  second  of  the  said  five  points,  We,  the  said  second  point. 
Baron  de  Courcel,  Mr.  Justice  Harlan,  Lord  Hannen,  Sir 
John  Thompson,  Marquis  Visconti  Veriosta,  and  Mr. 
Gregers  Gram,  being  a  majority  of  the  said  Arbitrators, 
do  decide  and  determine  that  Great  Britain  did  not  recog- 
nize or  concede  any  claim,  upon  the  part  of  Russia,  to  ex- 
clusive jurisdiction  as  to  the  seal  fisheries  in  Bering  Sea, 
outside  of  ordinary  territorial  waters. 

As  to  the  third  of  the  said  five  points,  as  to  so  much  Third  point. 
thereof  as  requires  us  to  decide  whether  the  body  of  water 
now  known  as  the  Bering  Sea  was  included  in  the  phrase 
"Pacific  Ocean"  as  used  in  the  Treaty  of  1825,  between 
Great  Britain  and  Russia,  We,  the  said  Arbitrators,  do 
unanimously  decide  and  determine  that  the  body  of  water 
now  known  as  the  Bering  Sea  was  included  in  the  phrase 
"  Pacific  Ocean  "  as  used  in  the  said  Treaty. 

And  as  to  so  much  of  the  said  third  point  as  requires  us 
to  decide  what  rights,  if  any,  in  the  Bering  Sea  were  held 
and  exclusively  exercised  by  Russia  after  the  said  Treaty 
of  1825,  We,  the  said  Baron  de  Courcel,  Mr.  Justice  Har- 
lan, Lord  Hannen,  Sir  John  Thompson,  Marquis  Visconti 
Venosta,  and  Mr.  Gregers  Gram,  being  a  majority  of  the 
said  Arbitrators,  do  decide  and  determine  that  no  exclusive 
rights  of  jurisdiction  in  Bering  Sea  and  no  exclusive  rights 
as  to  the  seal  fisheries  therein  were  held  or  exercised  by 
Russia  outside  of  ordinary  territorial  waters  after  the 
Treaty  of  1825. 

As  to  the  fourth  of  the  said  five  points,  We,  the  said 
Arbitrators,  do  unanimously  decide  and  determine  that  all 
the  rights  of  Russia  as  to  jurisdiction  and  as  to  the  seal 


Fourth  point. 


170 

fisheries  in  Bering  Sea,  east  of  the  water  boundary,  in 
the  Treaty  between  the  United  States  and  Russia  of  the 
30th  of  March,  1867,  did  pass  unimpaired  to  the  United 
States  under  the  said  Treaty. 

Fifth  point.  As  to  the  fifth  of  said  five  points,  We,  the  said  Baron 
de  Courcel,  Lord  Hannen,  Sir  John  Thompson,  Marquis 
Visconti  Venosta,  and  Mr.  Gregers  Gram,  being  a  major- 
ity of  the  said  Arbitrators,  do  decide  and  determine  that 
the  United  States  has  not  any  right  of  protection  or  prop- 
erty in  the  fur  seals  frequenting  the  islands  of  the  United 
States  in  Bering  Sea,  when  such  seals  are  found  outside 
the  ordinary  three-mile  limit. 

R^ui°tionsre(?e-  ^nc^  wnereas  the  aforesaid  determination  of  the  fore- 
t>ev  Tribunaiup°n  S°*n£  questions  as  to  the  exclusive  jurisdiction  of  the 
United  States  mentioned  in  Article  VI  leaves  the  subject 
in  such  a  position  that  the  concurrence  of  Great  Britain  is 
necessary  to  the  establishment  of  Regulations  for  the 
proper  protection  and  preservation  of  the  fur-seal  in  or 
habitually  resorting  to  the  Bering  Sea,  the  Tribunal 
having  decided  by  a  majority  as  to  each  Article  of  the 
following  Regulations,  We,  the  said  Baron  de  Courcel, 
Lord  Hannen,  Marquis  Visconti  Venosta,  and  Mr.  Gregers 
Gram,  assenting  to  the  whole  of  the  nine  Articles  of  the 
following  Regulations,  and  being  a  majority  of  the  said 
Arbitrators,  do  decide  and  determine,  in  the  mode  pro- 
vided by  the  Treaty,  that  the  following  concurrent  Regu- 
lations outside  the  jurisdictional  limits  of  the  respective 
Governments  are  necessary  and  that  they  should  extend 
over  the  waters  hereinafter  mentioned;  that  is  to  say: 

ARTICLE  1. 

The  Governments  of  the  United  States  and  of  Great 
Britain  shall  forbid  their  citizens  and  subjects  respectively 
to  kill,  capture,  or  pursue,  at  any  time  and  in  any  manner 
whatever,  the  animals  commonly  called  fur  seals,  within 
a  zone  of  sixty  miles  around  the  Pribilof  Islands,  inclusive 
of  the  territorial  waters. 

The  miles  mentioned  in  the  preceding  paragraph  are 
geographical  miles  of  sixty  to  a  degree  of  latitude. 

ARTICLE  2. 

The  two  Governments  shall  forbid  their  citizens  and 
subjects  respectively  to  kill,  capture,  or  pursue,  in  any 
manner  whatever,  during  the  season  extending,  each  year, 
from  the  1st  of  May  to  the  31st  of  Juhr,  both  inclusive, 


171 
the  fur  seals  on  the  high  sea,  in  the  part  of  the  Pacific    concurrent 

„  -  .       .fr  0  ,  .    .     .       .  ,  Regulations  de- 

Ocean,  inclusive  or  the  -Bering  oea,  which  is  situated  to  the  temnned  upon 
north  of  the  35th  degree  of  North  latitude,  and  eastward 
of  the  180th  degree  of  longitude  from  Greenwich  till  it 
strikes  the  water  boundary  described  in  Article  1  of  the 
Treaty  of  1867  between  the  United  States  and  Russia,  and 
following  that  line  up  to  Bering  Straits. 

ARTICLE  3. 

During  the  period  of  time  and  in  the  waters  in  which 
the  fur  seal  fishing  is  allowed,  only  sailing  vessels  shall 
be  permitted  to  carry  on  or  take  part  in  fur-seal  fishing 
operations.  They  will,  however,  be  at  liberty  to  avail 
themselves  of  the  use  of  such  canoes  or  undecked  boats, 
propelled  by  paddles,  oars,  or  sails,  as  are  in  common  use 
as  fishing  boats. 

ARTICLE  4. 

Each  sailing  vessel  authorized  to  fish  for  fur  seals  must 
be  provided  with  a  special  license  issued  for  that  purpose 
by  its  Government  and  shall  be  required  to  carry  a  distin- 
guishing flag  to  be  prescribed  by  its  Government. 

ARTICLE  5. 

The  masters  of  the  vessels  engaged  in  fur  seal  fishing 
shall  enter  accurately  in  their  official  log  book  the  date 
and  place  of  each  fur  seal  fishing  operation,  and  also  the 
number  and  sex  of  the  seals  captured  upon  each  day. 
These  entries  shall  be  communicated  by  each  of  the  two 
Governments  to  the  other  at  the  end  of  each  fishing  season. 

ARTICLE  6. 

The  use  of  nets,  firearms,  and  explosives  shall  be  for- 
bidden in  the  fur  seal  fishing.  This  restriction  shall  not 
apply  to  shotguns  when  such  fishing  takes  place  outside 
of  Bering's  Sea,  during  the  season  when  it  may  be  law- 
fully carried  on. 

ARTICLE  7. 

The  two  Governments  shall  take  measures  to  control 
the  fitness  of  the  men  authorized  to  engage  in  fur  seal 
fishing;  these  men  shall  have  been  proved  fit  to  handle 
with  sufficient  skill  the  weapons  by  means  of  which  this 
fishing  may  be  carried  on. 


172 
ARTICLE  8. 

Rfguinationsrede-  The  regulations  contained  in  the  preceding  articles  shall 
bvTribeunaiup°n  not  aPPbT  to  Indians  dwelling  on  the  coast  of  the  territory 
of  the  United  States  or  of  Great  Britain  and  carrying  on 
fur  seal  fishing  in  canoes  or  undecked  boats  not  trans- 
ported by  or  used  in  connection  with  other  vessels  and 
propelled  wholly  by  paddles,  oars,  or  sails,  and  manned 
by  not  more  than  fivre  persons  each,  in  the  way  hitherto 
practiced  by  the  Indians,  provided  such  Indians  are  not  in 
the  employment  of  other  persons,  and  provided  that,  when 
so  hunting  in  canoes  or  undecked  boats,  they  shall  not 
hunt  fur  seals  outside  of  territorial  waters  under  contract 
for  the  delivery  of  the  skins  to  any  person. 

This  exception  shall  not  be  construed  to  affect  the  mu- 
nicipal law  of  either  country,  nor  shall  it  extend  to  the 
waters  of  Bering  Sea  or  the  waters  of  the  Aleutian  Passes. 
Nothing  herein  contained  is  intended  to  interfere  with 
the  employment  of  Indians  as  hunters  or  otherwise  in 
connection  with  fur  sealing  vessels  as  heretofore. 

ARTICLE  9. 

The  concurrent  regulations  hereby  determined  with  a 
view  to  the  protection  and  preservation  of  the  fur  seals 
shall  remain  in  force  until  they  have  been,  in  whole  or  in 
part,  abolished  or  modified  by  common  agreement  between 
the  Governments  of  the  United  States  and  of  Great  Britain. 

The  said  concurrent  regulations  shall  be  submitted  every 
five  years  to  a  new  examination,  so  as  to  enable  both  inter- 
ested Governments  to  consider  whether,  in  the  light  of 
past  experience,  there  is  occasion  for  any  modification 
thereof. 

*  *  *  *  *  *  * 

And  whereas  each  and  every  question  which  has  been 
considered  by  the  Tribunal  has  been  determined  by  a 
majority  of  all  the  Arbitrators; 

Now,  We,  Baron  de  Courcel,  Lord  Hannen,  Mr.  Justice 
Harlan,  Sir  John  Thompson,  Senator  Morgan,  the  Mar- 
quis Visconti  Venosta,  and  Mr.  Gregers  Gram,  the  respec- 
tive minorities  not  withdrawing  their  votes,  do  declare 
this  to  be  the  final  Decision  and  Award  in  writing  of  this 
Tribunal  in  accordance  with  the  Treaty. 

Made  in  duplicate  at  Paris  and  signed  by  us  the  fifteenth 
day  of  August,  in  the  year  1893. 


173 

And  We  do  certify  this  English  Version  thereof  to  be 
true  and  accurate. 

ALPH.  DE  COURCEL. 

JOHN  M.  HARLAN. 

JOHN  T.  MORGAN. 

HANNEN. 

JNO.  S.  D.  THOMPSON. 

VISCONTI  VENOSTA. 

G.  GRAM. 


RIGHTS  OF  CITIZENS   OF   THE    UNITED    STATES   IN 
FOREIGN  COUNTRIES. 

ILLEGAL  IMPRISONMENT. 

(Opinions  of  Attorney-General  U.  8*  Vol.  XXII,  p. 32,  etc.) 

The  following  extract  is  from  an  opinion  of  the 
Attorney-General  of  the  United  States,  in  which  it 
is  held  that  the  imprisonment  of  a  United  States 
citizen  by  a  foreign  official  because  of  alleged  dis- 
respect of  that  official's  authority,  and  without  judi- 
cial process  or  allegation  of  a  violation  of  lawj  is 
such  an  injury  as  to  render  that  official's  govern- 
ment liable  in  damages: 

On  January  4,  1886,  a  citizen  of  the  United  States,  Mr. 
Thomas  J.  Culliton,  the  treasurer  of  the  dredging  com- 
pany then  doing  work  on  the  Isthmus  of  Panama,  was 
arrested  and  imprisoned  by  the  acting  prefect  of  Colon 
without  judicial  process  and  without  any  allegation  of  a 
violation  of  law,  but  simply  because  Mr.  Culliton's  con- 
duct was  alleged  by  the  prefect  to  be  in  disrespect  of  his 
authority.  The  United  States  consul  at  Colon  and  Admiral 
Jouett,  who  happened  to  be  in  port  at  that  time,  inter- 
vened, and  Culliton  was  released  by  the  order  of  the  pre- 
fect after  live  hours'  detention  in  the  common  jail. 

The  imprisonment  of  a  citizen  of  the  United  States  by 
an  officer  of  a  foreign  government,  without  judicial  proc- 
<^s.  or  allegation  of  a  violation  of  law,  but  because  of  an 
alleged  disrespect  of  such  official's  authority,  is  such  an 
injury  as  to  render  such  government  liable  in  damages. 

The  loss  of  time,  the  absence  from  business,  the  personal 
humiliation,  the  bodily  and  mental  suffering,  resulting 


174 

from  wrongful  arrest  and  imprisonment,  are  grounds  for 
compensatory  damages.  The  precise  amount  required  to 
make  the  wronged  citizen  whole  is  determined  in  a  suit  of 
law  by  a  jury,  and  in  this  case  must  be  fixed  through  nego- 
tiations. 


EXTRATERRITORIAL  RIGHTS  IN  CHINA. 
AS  TO  MUNICIPALITY  OF  SHANGHAI. 

The  following1  is  a  portion  of  a  letter  from  Secre- 
tary Bayard  to  Mr.  Denby,  minister  to  China,  dated 
March  7,  1887,a  concerning  the  municipal  ordinances 
of  Shanghai,  and  the  authority  of  the  consul-general 
at  that  place  to  enforce  them : 

I  have  received  your  No.  240  of  the  12th  of  November 

last,  touching  the   projected   revision  of   the  municipal 

regulations  and  by-laws  of  Shanghai,  and  offering  certain 

pertinent  points  for  the  consideration  of  the  Department. 

shanghai  mu-     Jt  appears  that  by  the  municipal  charter  of  Shanghai 

nicipal  charter.  » 

every  foreigner  owning  land  of  the  value  of  at  least  500 
taels,  or  occupying  a  house  of  an  assessed  rental  value  of 
not  less  than  250  taels,  is  a  member  of  what  is  called  the 
"municipal  body,"  and  is  entitled  to  vote  at  all  municipal 
elections.  The  "municipal  body"  elect  at  stated  times  a 
municipal  council,  consisting  of  not  more  than  nine  mem- 
bers, who  have  the  power  to  make  regulations  for  the 
government  of  the  municipality,  subject  to  the  approval 
of  the  consuls  and  foreign  ministers,  or  a  majority  of 
them,  and  of  the  ratepayers  at  a  special  meeting. 
Proposed  re-  In  the  proposed  revision  it  is  insisted  by  the  munici- 

vision  of  munici-        ...  ,        ,  ,-,  •,  «,         -, 

pai  regulations,  pality,  in  respect  to  any  by-law  that  may  hereafter  be 
passed,  that  "any  such  additional  or  substituted  by-law, 
or  alteration  or  repeal  of  a  by-law,  shall  be  binding  when 
approved  by  the  treaty  consuls  and  the  intendant  of  cir- 
cuit, or  by  a  majority  of  them;  but  the  representatives  of 
the  treaty  powers  may,  at  any  time  within  six  months  of 
the  date  of  such  approval,  annul  any  such  additional  or 
substituted  by-law,  or  alteration  or  repeal  of  by-law." 

Your  opinion  as  to  this  proposed  ordinance  is  in  entire 
accord  with  that  of  the  Department,  that  it  would  reverse 

«  Wharton's  International  Law  Digest,  second  edition,  vol.  3,  Ap- 
pendix, p.  852. 


175 

the  proper  order  of  things  and  be  inexpedient  to  put  in 
force,  without  the  approval  of  the  foreign  ministers,  a 
bv-law  which  they  might,  in  the  exercise  of  an  acknowl- 
edged power,  subsequently  disapprove  and  disallow.  This 
would  be  in  fact  the  substitution  of  a  power  of  annulment 
for  the  power  of  veto  which  the  foreign  ministers  now 
possess. 

The  question  which  you  suggest  as  to  the  authority  of 
the  consul-sreneral  at  Shanghai  to  enforce  the  ordinances  enforce 

'    t  f  pal  ordinances. 

of  the  municipality  against  citizens  of  the  United  States 
is  not  without  difficulty.  Under  section  4086  of  the  Re- 
vised Statutes  of  the  United  States,  consuls  of  the  United 
States  in  China  are  empowered  to  exercise  criminal  and 
civil  jurisdiction  in  conformity  with  the  laws  of  the 
United  States.  It  is  provided,  however,  that  when  those 
laws  are  not  adapted  to  the  object,  or  are  deficient  in  the 
provisions  necessary  to  furnish  suitable  remedies  the  com- 
mon law  and  the  law  of  equity  and  admiralty  shall  be 
extended  to  the  persons  within  the  consul's  jurisdiction; 
and  iF  neither  the  common  law  nor  the  law  of  equity  or  under  certain 
admiralty,  nor  the  statutes  of  the  United  States,  furnish 
appropriate  remedies  the  ministers  in  the  countries,  respec-  r 
tively,  to  which  the  statute  applies  shall,  by  decrees  and  jaw.th< 
regulations  which  shall  have  the  force  of  law,  supply  such 
defects  and  deficiencies. 

The  last  clause,  in  respect  to  decrees  and  regulations, 
has  been  construed  by  the  Department  to  confer  upon  the 
ministers  in  question  the  power  to  regulate  the  course  of 
procedure  and  the  forms  of  judicial  remedies  rather  than 
any  general  legislative  power  for  the  definition  of  offenses 
and  the  imposition  of  penalties  for  their  commission.  It 
is  true  that  opinion  has  been  divided  on  this  point.  Mr. 
Attorney-General  Gushing  held  that  the  power  given  to 
the  commissioner  of  the  United  States  in  China  to  make 
"  decrees  and  regulations"  which  should  have  the  force  of 
law  gave  him  the  power  to  legislate  in  certain  respects  for 
citizens  of  the  United  States  in  China,  and  "to  provide  for 
many  cases  of  criminality  which  neither  Federal  statutes 
nor  the  common  law  would  cover/'  (7  Op.,  504,  505.) 
The  disposition,  however,  of  this  Department  has  been  to 
restrict  the  legislative  power  of  the  minister  to  the  regu- 
lation of  forms  and  course  of  judicial  procedure,  it  not 
being  regarded  as  desirable  or  proper  to  authorize  the 
exercise  of  so  great  a  power,  while  it  was  so  much  in 
doubt,  as  that  of  criminal  legislation. 


176 
Grounds  for     But  the  ordinances  of  the  municipality  of   Shanghai, 

Shanghai  munic-    ,,,,•,  -,  j:         J.U    •  ^  v  e. 

ipai  ordinances,  although  dependent  tor  their  operation  as  to  citizens  ot 
the  United  States  upon  the  approval  of  the  minister  of 
this  Government  in  China,  are  conceived  to  present  in  one 
aspect  a  different  question  from  that  of  the  power  of  the 
minister  of  the  United  States  as  to  criminal  legis.ation. 
The  municipality  of  Shanghai  is  understood  to  have  been 
organized  by  the  voluntary  action  of  the  foreign  residents 
of  certain  nationalities,  or  such  of  those  residents  as  were 
owners  or  renters  of  land,  for  the  purpose  of  exercising 
such  local  powers  for  the  preservation  of  the  order  and 
morals  of  the  community  as  are  usually  enjoyed  by  munic- 
ipal bodies.  In  the  United  States,  where  government  is 
reduced  to  a  legal  s}rstem,  these  powers  of  local  police  rest 
on  charters  granted  by  the  supreme  legislative  authority 
of  the  State;  but  it  is  not  difficult  to  conceive  of  a  case  in 
which  a  community  outside  of  any  general  system  of  law 
might  organize  a  government  and  adopt  rules  and  regula- 
tions which  would  be  recognized  as  valid  on  the  ground  of 
the  right  of  self-preservation,  which  is  inherent  in  people 
everywhere. 

In  this  light  ma}7  be  regarded  the  municipal  ordinances 
of  Shanghai.  The  foreign  settlement  not  being  subject  to 
the  laws  of  China,  and  the  legal  systems  of  the  respective 
foreign  powers  represented  there  being  not  only  dissimilar 
inter  se,  but  insufficient  to  meet  the  local  needs,  it  became 
necessary  for  the  local  residents  interested  in  the  preser- 
vation of  peace  and  order  to  supply  the  deficiency. 

American  citizens  residing  in  Shanghai  enjoy,  in  com- 
mon with  other  persons  composing  the  foreign  settlement, 
all  the  rights,  privileges,  arid  protection  which  the  munici- 
pal government  affords;  and  as  they  go  there  voluntarily, 
and  presumptively  for  the  advancement  of  their  personal 
interests,  they  may  reasonably  be  held  to  observe  such 
police  regulations  as  are  not  inconsistent  with  their  rights 
under  the  laws  of  the  United  States.  It  is  true  that  this 
reasoning  is  not  Conclusive  as  to  the  strict  legal  authority 
of  the  consul-general  of  the  United  States  to  enforce  such 
regulations;  but,  taken  in  connection  with  the  fact  that  at 
present  American  citizens  in  Shanghai  are  not  subject  to 
any  judicial  control  except  that  of  the  consul-general  of 
the  United  States,  it  affords  a  basis  upon  which  his  en- 
forcement of  the  municipal  regulations  may  be  justified, 
risdfctlon  ol  con-  ^  'ls  important  to  observe  that  the  jurisdiction  of  con- 
suls in  china.  su]s  Of  the  United  States  in  China  is  very  extensive,  in- 


177 

eluding  not  only  the  administration  of  the  laws  of  the 
United  States,  and  the  law  of  equit3r  and  admiralty,  but 
also  the  common  law.  The  consular  courts  have,  there- 
fore, what  the  courts  of  the  United  States  generally  have 
not — common-law  jurisdiction  in  criminal  cases.  It  is  true 
that  this  jurisdiction  is  difficult,  indeed  incapable,  of  exact 
definition,  but  it  implies  the  power  to  enforce  rules  which 
are  not  to  be  found  on  the  statute-book  of  the  United 
States,  and  which  can  be  ascertained  only  by  the  applica- 
tion of  the  general  principles  of  the  common  law  to  special 
cases  and  condition.  In  respect  to  matters  of  local  police, 
a  fair  measure  and  definition  of  the  law  may  be  found  in 
the  regulations  adopted  by  the  municipality  in  aid  of  and 
supplementary  to  the  general  juridical  systems  of  the  for- 
eign powers.  Such  a  process,  while  maintaining  the  peace 
and  order  of  the  community,  tends  to  consolidate  the  local 
administration  of  law. 

The  Department  is,  however,  of  opinion  that  all  difficul- 
ties would  be  removed  if  the  treaty  powers  would  adhere 
to  the  plan  suggested  in  your  dispatch  of  organizing  a 
municipal  court  to  administer  the  regulations  of  the  mu- 
nicipal body.  This  course  would  be  advantageous,  both 
to  the  municipality  and  to  the  treaty  powers.  It  would 
relieve  the  consular  representatives  of  the  latter  from  the 
performance  of  an  embarrassing  duty,  and  would  secure  a 
uniform  and  equal  administration  of  the  municipal  laws. 


COOPERATION    OF    CIVILIZED    POWERS    IN    NON- 
CHRISTIAN  AND  SEMICIVILIZED  COUNTRIES. 

EXTRACTS  FROM  BRITISH  ADMIRALTY  STATION  ORDERS 
FOR  CHINA. 

DEPARTMENT  OF  STATE, 
Washington,  December  19,  189 1+. 
The  Honorable  The  SECRETARY  OF  THE  NAVY. 

SIR:  1  have  the  honor  to  inclose  for  your  information  a 
copy  of  a  note  of  the  14th  instant  from  the 'British  ambas- 
sador at  this  capital,  transmitting  a  copy  of  the  instruc- 
tions by  which  Her  Majesty's  naval  commanders  on  the 
Chinese  Station  for  the  protection  of  Europeans  at  the 
treat}r  ports  will  be  governed. 
I  have  the  honor  to  be.  Sir, 

Your  obedient  servant,  W.  Q.  GRESHAM. 

2056—04 12 


178 

WASHINGTON,  December  14,  1894. 

SIR:  With  reference  to  Mr.  Goschen's  note  of  October 
27  respecting  joint  action  by  the  naval  commanders  on  the 
China  Station  for  the  protection  of  Europeans  at  the 
treaty  ports,  I  have  the  honor  to  forward  to  you  here- 
with, at  the  request  of  the  Earl  of  Kimberly,  a  copy  of 
articles  396,  397,  405,  406,  and  407  of  the  station  orders 
for  China,  which  are  supplied  to  naval  commanders  of 
Her  Majesty's  ships. 

The  lords  commissioners  of  the  Amiralty  propose,  I  am 
informed,  to  adhere  to  these  instructions,  as  any  further 
orders  would,  in  their  opinion  fetter  the  discretion  which 
in  present  circumstances  it  is  desirable  to  give  to  the 
British  naval  commander-in-chief  in  China  in  settling  with 
his  colleagues  the  details  of  the  arrangement  which  may 
be  necessary  for  carrying  out  the  object  in  view. 
1  have  the  honor,  etc., 

JULIAN  PAUNCEFOTE. 

The  HON.  W.  Q.  GRESHAM. 


ARTICLE  396. 

AS  to  landing  Armed  parties  are  not  to  be  landed  from  Her  Majesty's 
ships  to  escort  consuls  proceeding  into  the  interior  of 
the  country,  except  under  circumstances  of  pressing 
emergency. 

2.  They  are  not  to  be  landed  during  a  disturbance,  or 
apprehended  disturbance,  unless  at  the  written  requisi- 
tion of  the  consular  officer  at  the  port,  who  is  to  state 
explicitly  in  it: 

(1)  That  the  lives,  or  property,  of  British  subjects  are  actually  in 
danger  from  violence,  which  can  not  otherwise  be  controlled  (vide 
article  421,  Admiralty  Instructions.) 

(2)  That  the  local  authorities  have  declined,  or  are  unable  to  afford 
the  necessary  protection. 

(3)  The  number,  nature,  and  arms  of  the  force  or  mob  against 
which  the  armed  party  is  required  to  be  landed,  also  the  nature  of  the 
locality,  or  any  other  information  that  may  enable  officers  command- 
ing to  judge  whether  the  resources  at  their  disposal  are  sufficient  to 
meet  the  exigencies  of  the  service  required.     (Observing  that  as  a 
rule  it  is  highly  unadvisable  to  risk  a  reverse  by  landing  a  weak 
party,  or  allowing  them  to  be  entangled  amongst  the  narrow  streets, 
which  are  usually  to  be  found  in  most  of  the  towns  out  here. ) 

3.  The  party  landed,  however  small,  is  to  be  commanded 
by  a  commissioned  officer,  and  is  to  be  kept  intact,  unless 
there  is  a  second  commissioned  officer  to  command  the 


179 

detached  force.  It  is  always  to  be  remembered  that 
"concentration  means  strength" — "dispersion  weak- 
ness," with  liability  of  being  defeated  in  detail. 

4.  The  officer  commanding  a  landing  party  is  invariably 
to  be  furnished  with  written  orders  laying  down  the  gen- 
eral principles  under  which  he  is  to  act,  and  as  far  as 
possible  the  details. 

5.  The  lords  commissioners  of  the  Admiralty  will  not 
sanction  any  departure  from  the  rule  laid  down  prohibit- 
ing naval  officers  from  undertaking  or  carrying  on  opera- 
tions at  a  distance  from  their  ships,  and  whatever  ope- 
ration they  may  engage  in,  jointly  with  Chinese  forces, 
must  always  be  carried  on  under  the  limitations  of  civi- 
lized and  Christian  warfare. 

ARTICLE  397. 

The  special  purposes  for  which  Her  Majesty's  ships  of  Off  a™iathebem- 
war  are  stationed  in  the  ports  of  China  and  employed  on^JJ16"*^ 
the  coasts  are  to  protect  the  floating  commerce  of  British  ^tere11  chinese 
subjects  against  the  piratical  attacks  in  Chinese  waters,  to 
support  Her  Majesty's  consuls  in  maintaining  order  and 
discipline  among  the  crews  of  British  vessels  in  the  re- 
spective ports,  and,  in  cases  of  great  emergency,  to  protect 
the  lives  and  properties  of  British  subjects  if  placed  in 
peril  by  wanton  attacks  directed  against  them,  either  on 
the  part  of  local  authorities  or  by  an  uncontrolled  popu- 
lar movement. 

2.  As  regards  this  last  point,  it  must  constantly  be  borne 
in  mind  that  the  interference  of  naval  force,  either  on  the 
representation  of  Her  Majesty's  consuls  or  on  the  part  of 
naval  officers  acting  on  their  own  estimation  of  facts  be-       • 
fore  them,  will  alone  receive  the  subsequent  approval  of 
Her  Majesty's  Gbvernment  when  it  is  clearly  shown  that, 
without  such  interference,    the  lives  and  properties  of 
British  subjects  would  in  all  probability  have  been  sacri- 
ficed; and  even  in  such  a  case  Her  Majesty's  Government 
will  expect  to  learn  that  the  alternative  of  receiving  them 

on  board  ship,  and  so  extricating  them  from  threatened 
danger,  was  not  available. 

3.  Beyond  this  the  circumstances  of  the  case  must  be 
of  a  very  peculiar  nature  which  would  be  held  by  Her 
Majesty's  Government  to  justify  a  recourse  to  force. 

4.  Her  Majesty's  Government  can  not  leave  it  with  Her 
Majesty's  consuls  or  naval  officers  to  determine  for  them- 
selves what  redress  or  reparation  for  wrong  done  to  Brit- 


180 

ish  subjects  is  due,  or  by  what  means  it  should  be  enforced. 
They  can  not  allow  them  to  determine  whether  coercion 
is  to  be  applied  by  blockade,  by  reprisals,  by  landing 
armed  parties,  or  by  acts  of  even  a  more  hostile  charac- 
ter. All  such  proceedings  bear  more  or  less  the  character 
of  acts  of  war,  and  Her  Majesty's  Government  can  not 
delegate  to  Her  Majesty's  servants  in  foreign  countries 
the  power  of  involving  their  own  country  in  war. 

ARTICLE  405. 

cooperation.  There  is  no  objection  to  officers  complying  with  requisi- 
tions from  the  Chinese  authorities  for  cooperation  in  ob- 
taining reparation  for  British  subjects  for  damage  to  their 
persons  or  properties,  with  the  clear  understanding  that 
the  operation  is  merely  directed  to  redress  the  wrong  done 
to  British  subjects,  and  not  to  the  general  assertion  of 
Chinese  authority  over  any  class  of  persons  who  may,  for 
whatever  reason,  be  obnoxious  to  the  local  government. 

Her  Majesty's  ministers  have  been  instructed  that 
"whenever  British  subjects  have  been  plundered,  or  are 
likely  to  be  exposed  to  maltreatment,  or  their  property  to 
be  endangered,  Her  Majesty's  consul  in  the  district  shall 
apply  to  the  Chinese  authorities  for  immediate  protection; 
or,  if  the  injury  has  been  consummated  before  such  pro- 
tection has  been  afforded,  for  redress  of  wrongs  sustained 
and  protection  against  their  renewal;  and  in  the  event  of 
those  authorities  pleading  inability  to  afford  it  with  the 
means  at  their  disposal,  the  consul  shall  offer  the  coopera- 
tion of  Her  Majesty's  naval  forces  as  far  as  they  may  be 
available  for  the  special  purpose  and  occasion,  and,  in  case 
*  of  necessity,  may  even  propose  that  Her  Majest}r's  naval 
forces  should  act  alone  if  accompanied  by  a  Chinese  man- 
darin, whose  presence  would  afford  imperial  sanction  to 
an  enterprise  which,  without  it,  would  be  inconsistent  with 
the  principles  on  which  Her  Majesty  desires  that  the  rela- 
tions between  the  two  countries  should  be  conducted." 

ARTICLE  406. 

The  particular  attention  of  officers  in  command  is  di- 
rected to  the  following  extract  from  a  dispatch  of  Sir 
Rutherford  Alcock,  dated  the  15th  of  March,  1869,  to  the 
Commander-in-Chief: 

Naval  force  to     it  ig  obviously  the  desire  of  Her  Majesty's  Government  to  recognize 
act  alone  only  in  » 

case  of  imminent  the  supreme  authority  of  the  Government  at  Peking  over  the  provm- 

danger.  cjaj  authorities  and  to  discountenance  all  local  efforts  to  arrive  at  the 


181 

settlement  of  differences  by  any  measures  of  coercion  or  pressure 
brought  to  bear  against  the  latter.  They  count  upon  the  central  Gov- 
ernment exercising  the  necessary  power  for  the  redress  of  local  griev- 
ances, and  disapprove  all  actions  of  the  consuls,  on  the  spot,  beyond 
the  due  representation  of  the  causes  of  complaint.  If  they  fail  in 
obtaining  redress  by  such  means,  their  appeal  then  lies  to  Her  Maj- 
esty's minister  at  Peking,  and  in  no  case  to  the  naval  force,  except  for 
the  immediate  protection  of  lives  and  property  in  imminent  danger, 
and  in  default  of  that  protection  which  the  Chinese  local  authorities 
are  bound  by  treaty  to  supply. 

It  is  only  under  such  circumstances,  I  conclude,  that  Her  Majesty's 
Government  would  sanction  any  appeal  on  the  part  of  Her  Majesty's 
consuls  for  aid  from  the  naval  commanders,  or  approve  of  assistance 
being  rendered. 

ARTICLE  407. 

The  foregoing  articles,  Nos.  396,  397,  405,  and  406,  con- 
taining, as  they  do,  explicit  rules  approved  by  Her  Maj- 
esty's Government,  are  in  a  general  way  amply  sufficient 
for  the  purpose  for  which  they  were  framed,  but  in  view 
of  the  apparently  organized  character  of  the  outrages 
recently  perpetrated  in  the  Yang-tsze  Valley  at  Wuhu, 
Wusueh,  and  other  places,  the  following  observations  may 
be  useful  to  officers  suddenly  brought  face  to  face  with  an 
emergency  of  this  nature. 

2.  It  is  the  obvious  duty  of  the  Chinese  Government  to 
maintain  order  in  the  country,  and  the  necessity  for  com- 
plying with  this  obligation  can  not  be  too  strongly  urged 
upon  the  local  authorities  at  all  ports  where  British  sub- 
jects are  established. 

3.  The   treaty  ports  at  which   Her  Majesty's  consuls    General  pro- 

.,  -ir.  •  i  •  11      cedure  in  case  of 

reside  necessarily  require  the  first  consideration,  and  the  threatened  out- 

breaks. 

main  object  to  be  kept  in  view  is  that  Her  Majesty's  con- 
suls should  employ  all  their  influence  in  causing  the  taotai, 
or  other  local  official  in  command  at  a  place  where  disturb- 
ances are  apprehended,  to  make  proper  arrangements  to 
preserve  order,  and  to  prevent  outrages  being  committed 
against  the  persons  or  property  of  British  subjects,  and 
in  the  event  of  such  officials  declaring  themselves  unable 
to  preserve  order,  to  secure  their  full  authority  and  per- 
sonal cooperation  in  any  action  to  be  taken  by  the  crews 
of  Her  Majesty's  ships.  . 

4.  The  mode  of  procedure  required  from  consuls  in 
making  requisition  for  armed  assistance  upon  the  captains 
of  Her  Majesty's  ships  is  laid  down  in  article  396. 

5.  Officers  commanding  Her  Majesty's  ships  stationed 
for  the  protection  of  British  residents  at  treaty  ports  are 
to  take  the  earliest  opportunity  after  their  arrival  to  study 


182 
General    pro-  the  features  of  the  concessions  or  settlements,  with  a  view 

CGduro  in  C£isc  of 

threatened  out-  to  arriving  at  a  definite  plan  of  action,  should  action 
unfortunately  become  unavoidable,  and  in  concert  with 
Her  Majesty's  consul  should,  before  the  occasion  arises 
if  possible,  settle  upon  a  course  of  procedure  to  be  fol- 
lowed in  case  of  necessity  by  all  British  subjects  in  the 
neighborhood. 

6.  The  first  consideration  is  necessarily  the  safety  of 
women  and  children,  and  it  is  obvious  that  these  should 
not  be  left  in  exposed  places,  especially  at  night,  when 
any  danger  from  the  Chinese  populace  is  apprehended. 

7.  In  all  the  treaty  ports,  and  in  some  others,  are  hulks 
lying  off  the  bunds,  and  to  these  hulks  the  women  and 
children  should  remove  in  good  time  before  the  occurrence 
of  an  outbreak.     An  armed  boat's  crew,  or  a  very  small 
number  of  men,  could  secure  the  safety  of  the  people  in 
these  vessels  on  the  connection   with   the  shore   being 
broken. 

8.  It  is  clear  that  small  detachments  of  men  can  not  be 
sent  out  to  distant  places,  or  to  the  back  streets  in  Chinese 
towns,  and  missionaries  and  others  in  such  localities  should 
remove  to  the  port  before  they  have  to  risk  their  lives 
as  well  as  the  property  which  it  may  be  their  object  to 
stand  by. 

9.  The  loss  of  property  wantonly  destined  or  plun- 
dered by  Chinese  mobs  is  recoverable  by  indemnity  from 
the  Chinese  Government;  it  is  needless  to  say  the  loss  of 
life  is  not. 

10.  The  consideration  second  in  importance,  therefore, 
should  be  the  timely  withdrawal  of  people  from  outlying 
exposed  positions  to  some  central  raiding  point  on  the 
water  front,  to  be  decided  on  according  to  strategic  con- 
sideration— this  would  no   doubt  be   in   most  cases  the 
British  consulate. 

11.  Third,  the  able-bodied  men  in  the  settlement  should 
be  required  by  the  consul  to  organize  themselves  for  the 
protection  of  the  women  and  children,  or,  if  in  sufficient 
numbers,  for  general  defense,  and  in  this  all  possible  as- 
sistance should  be  given  them. 

12.  A  rallying  point — which  should  always  be,  if  pos- 
sible, covered  by  the  ship  of  war — being  decided  upon, 
commanding  officers  would  then  be  strictly  right  in  giving 
all  possible  aid  in  its  defense,  as  it  is  obvious  that  Her 
Majesty's  consulates,  or  the  dwellings  of  Her  Majesty's 
subjects,  must  not  be  attacked  by  ruffianly  mobs  and  the 
flag  insulted  under  the  guns  of  Her  Majesty's  ships. 


183 

13.  Commanding  officers  will  understand  that  while  the    General    pro- 
i  L       u  u  ji  -£         u          -i      £  u  eedore  in  case  of 
last  resort  should  be  to  force,  it  unhappily  force  becomes  threatened   out- 

breaks 

unavoidable,  their  action  should  be  sharp  and  decisive,  and 
a  serious  lesson  should  be  given;  but  it  is  only  requisite 
to  consider  the  number  of  places  in  China  where  British 
subjects  and  other  foreigners  are  more  or  less  at  the  mere}' 
of  the  Chinese  populace  to  enable  them  to  fully  realize  the 
necessity  of  forbearance  within  all  reasonable  limits  in 
dealing  with  local  disturbances,  and  the  necessity  for  secur- 
ing, if  possible,  the  attendance  of  the  local  mandarins, 
should  they  be  compelled  to  fire  on  a  mob. 

14.  If  missionaries  or  other  persons,  in  the  face  of  the 
threatened  outbreak,  find  it  necessary  to  close  their  estab- 
lishments, the  consuls  will  no  doubt  notify  the  fact  to  the 
local  authorities  and  request  them  to  place  guards  upon 
the  premises  and  their  official  seal  upon  the  doors. 

15.  During  an}r  extraordinary  movement  of  the  Chinese 
populace  which  appears  to  be  directed  against  foreigners 
generally,  humanity  as  well  as  a  common  interest  demands 
that  help  should  be  freely  extended  to  the  citizens  of  other 
States  in  all  cases  when  it  can  be  afforded  by  Her  Majes- 
ty's ships,  as  it  will  undoubtedly  be  rendered  by  the  com- 
manders of  foreign  ships  of  war  to  all  British  subjects  who 
may  be  in  need  of  that  protection  which  they  may  be  in  a 
position  to  afford  under  like  circumstances. 


INJURIES  TO  FOREIGNERS  BY  MOB  VIOLENCE. 
CASES  OF  ITALIAN  SUBJECTS  IN  NEW  ORLEANS. 

(United  States  Foreign  Relations,  1891,  pp.  682-686.) 

Iii  the  following  letter  of  the  Secretary  of  State 
it  is  held  that  subjects  of  foreign  governments  must 
submit  to  treatment  according  to  the  laws  of  the 
country  of  domicile;  that  they  are  not  entitled  to 
special  treatment  or  to  methods  of  redress  beyond 
those  open  to  citizens  of  the  country;  and  that  they 
accept  the  laws  and  customs  of  the  country  where 
they  take  up  residence. 


184 
Mr.  Elaine  to  Marquis  Intjx  r'mli. 

DEPARTMENT  OF  STATE, 

Washington,  April  14,  1891. 

^  nave  the  honor  to  acknowledge  the  receipt  of  your 
note  dated  Thursday,  April  2,  1891.  It  contains  a  second 
telegram  from  the  Marquis  Rudini,  a  part  of  which  I  here 
quote: 

The  Government  of  the  King  of  Italy  has  asked  nothing  beyond  the 
prompt  institution  of  judicial  proceedings  through  the  regular  chan- 
nels. It  would  have  been  absurd  to  claim  the  punishment  of  the 
guilty  parties  without  the  warrant  of  a  regular  judgment.  The  Italian 
Government  now  repeats  the  same  demand.  Not  until  the  Federal 
Government  shall  have  explicitly  declared  that  the  aforesaid  proceed- 
ings shall  be  promptly  begun  can  the  diplomatic  incident  be  considered 
as  closed. 

This  Government  certainly  had  no  desire  whatever  to 
change  the  meaning  of  the  Marquis  Rudini's  telegram  of 
March  24.  It  was  delivered  at  the  State  Department  by 
Baron  Fava  in  person,  written  in  his  own  hand,  and  ex- 
pressed in  the  English  language.  The  following  is  the 
full  text  of  the  telegram: 

ROME,  March  24,  1891. 
ITALIAN  MINISTER,  Washington: 

Our  requests  to  the  Federal  Government  are  very  simple.  Some 
Italian  subjects,  acquitted  by  the  American  magistrates,  have  been 
murdered  in  prison  while  under  the  immediate  protection  of  the 
authorities.  Our  right,  therefore,  to  demand  and  obtain  the  punishment 
of  the  murderers  and  an  indemnity  for  the  victims  is  unquestionable.  I 
wish  to  add  that  the  public  opinion  in  Italy  is  justly  impatient,  and, 
if  concrete  provisions  were  not  at  once  taken,  I  should  find  myself  in 
the  painful  necessity  of  showing  openly  our  dissatisfaction  by  recall- 
ing the  minister  of  His  Majesty  from  a  country  where  he  is  unable  to 
obtain  justice. 

RUDINI. 

The  words  underscored  are  precisely  those  which  I 
quoted  in  my  former  note;  and  I  am  directed  by  the  Pres- 
ident to  express  the  satisfaction  of  this  Government  with 
the  very  material  qualification  of  the  demand  made  by  the 
Marquis  Rudini  on  behalf  of  the  Italian  Government. 

You  quote  in  your  note  another  part  of  the  Marquis 
Rudini's  telegram  of  April  2  in  these  words: 

Meanwhile  His  Majesty's  Government  takes  note  of  the  declaration 
whereby  the  Federal  Government  recognizes  that  an  indemnity  is  due 
to  the  families  of  the  victims  in  virtue  of  the  treaty  in  force  between 
the  two  countries. 


° 


f  oroe  TS  the  Marquis  Rudini  will  carefully  examine  my  note 
ffif'S  treaty  of  APril  *»  he  wil1  discover  that  I  did  not  "  recognize  that 
rights.  an  indemnity  is  due  to  the  families  of  the  victims  in  vir- 


185 

tue  of  the  treat}'  in  force  between  the  two  countries." 
What  I  did  .say  was  in  answer  to  Baron  Fava's  assertion 
that  the  United  States  Government  refused  to  take  this 
demand  for  indemnity  into  consideration.  I  quote  my 
reply: 

The  United  States,  so  far  from  refusing,  has  distinctly  recognized 
the  principle  of  indemnity  to  those  Italian  subjects  who  may  have  been 
wronged  by  a  violation  of  the  rights  secured  to  them  under  the  treaty  with 
the  United  States  concluded  February  26,  1871. 

The  Marquis  Rudini  ma}'  be  assured  that  the  United 
States  would  recompense  every  Italian  subject  who  might 
"be  wronged  by  the  violation  of  a  treat}'"  to  which  the 
faith  of  the  United  States  is  pledged.  But  this  assurance 
leaves  unsettled  the  important  question  whether  the  treaty 
has  been  violated.  Upon  this  point  the  President,  with 
sufficient  facts  placed  before  him,  has  taken  full  time  for 
decision.  He  now  directs  that  certain  considerations  on 
the  general  subject  be  submitted  to  the  judgment  of  the 
Italian  Government. 

As  a  precedent  of  great  value  to  the  case  under  discus-  ag)[il,°t 


sion,  the  President  recalls  the  conclusion  maintained  by  andPo"her  ^pan- 

Mr.   Webster  in  1851,  when  he  was  Secretary  of  State  5gLBDbJectl  in 

under  President  Fillmore.     In  August  of  that  year  a  mob 

in  New  Orleans  demolished  the  building  in    which    the 

office  of  the  Spanish  consul  was  located,  and  at  the  same 

time   attacks   were   made   upon   coffeehouses   and   cigar 

shops  kept  by  Spanish  subjects.     American  citizens  were 

involved  in    the    losses,  which,  in  the  aggregate,  were 

large.     The  supposed  cause  of  the  mob  was  the  intelli- 

gence of  the  execution  of  50  young  Americans  in  Havana 

and  the  banishment  to  Spanish  mines  of  nearly  200  citi- 

zens of  the  United  States.     The  victims  were  all  mem- 

bers of  the  abortive  Lopez  expedition. 

In  consequence  of  these  depredations  of  the  mob  upon 
the  property  of  the  Spanish  consul,  as  well  as  against  the 
Spanish  subjects,  Don  Calderon  de  la  Barca,  the  min- 
ister of  Spain,  demanded  indemnification  for  all  the  losses, 
both  official  and  personal. 

Mr.    Webster  admitted    that  the  Spanish    consul    was    indemnity  due 

r  to  consul. 

entitled  to  indemnity,  and  assured  the  Spanish  minister  if 
the  injured  consul,  Mr.  Laborde  — 

shall  return  to  his  post,  or  any  other  consul  for  New  Orleans  shall  be 
appointed  by  Her  Catholic  Majesty's  Government,  the  officers  of  this 
Government  resident  in  that  city  will  be  instructed  to  receive  and  treat 
him  with  courtesy  and  with  a  national  salute  to  the  flag  of  his  ship, 
if  he  shall  arrive  in  a  Spanish  vessel,  as  a  demonstration  of  respect, 


186 

such  as  may  signify  to  him  and  to  his  Government  the  sense  enter- 
tained by  the  Government  of  the  United  States  of  the  gross  injustice 
done  to  his  predecessor  by  a  lawless  mob,  as  well  as  the  indignity  and 
insult  offered  by  it  to  a  foreign  State  with  which  the  United  States  are, 
and  wish  ever  to  remain,  on  terms  of  the  most  respectful  and  pacific 
intercourse. 

r     But  when  pressed    by  the  Spanish  minister  to  afford 
subjects ^"'ack-ittderonity  to  Spanish  subjects  injured  by  the  mob  in  corn- 
ceded  to.  mon  wjth  American   citizens,  Mr.   Webster   declined  to 
accede  to  the  demand,  and  gave  his  reasons  as  follows: 

This  Government  supposes  that  the  rights  of  the  Spanish  consul,  a 
public  officer  residing  here  under  the  protection  of  the  United  States 
Government,  are  quite  different  from  those  of  the  Spanish  subjects 
who  have  come  into  the  country  to  mingle  with  our  own  citizens  and 
here  to  pursue  their  private  business  and  objects.  The  former  may 
claim  special  indemnity;  the  latter  are  en  titled  to  such  protection  as  is 
afforded  to  our  own  citizens.  While,  therefore,  the  losses  of  individ- 
uals, private  Spanish  subjects,  are  greatly  to  be  regretted,  yet  it  is  un- 
derstood that  many  American  citizens  suffered  equal  losses  from  the 
same  cause;  and  these  private  individuals,  subjects  of  her  Catholic 
Majesty,  coming  voluntarily  to  reside  in  the  United  States,  have  cer- 
tainly no  cause  of  complaint  if  they  are  protected  by  the  same  laws 
and  the  same  administration  of  law  as  native-born  citizens  of  this 
country.  They  have,  in  fact,  some  advantages  over  citizens  of  the 
State  in  which  they  happen  to  be,  inasmuch  as  they  are  enabled,  until 
they  become  citizens  themselves,  to  prosecute  for  any  injuries  done  to 
their  persons  or  property  in  the  courts  of  the  United  States  or  the 
State  courts,  at  their  election. 

indemnity  ac-     It  is  proper,  however,  to  add  that  two  3Tears  after  Mr. 

tually  paid  as  an  . 

act  of  grace.  Webster  wrote  the  foregoing  note  Congress,  in  recogni- 
tion of  certain  magnanimous  conduct  on  the  part  of  the 
Queen  of  Spain  in  pardons  bestowed  on  Americans  who 
had  unjustifiably  invaded  the  island  of  Cuba,  enacted  a 
joint  resolution,  approved  by  President  Fillmore  March 
3,  1853,  the  last  da}7  of  his  term,  indemnifying  the  Span- 
ish consul  and  other  Spanish  subjects  for  the  losses  sus- 
tained in  the  New  Orleans  mob  of  1851 .  The  considerations 
upon  which  this  resolution  was  passed  were  held  not  to 
contravene  the  original  position  of  Mr.  Webster,  shared 
also  by  President  Fillmore. 
judicial  rem-  The  right  to  judicial  remedy  which  Mr.  Webster  assured 

fan  subjects.  to  the  Spanish  subjects  is  likewise  assured  to  the  Italian 
subjects.  The  right  is  specially  guaranteed  in  the  second 
section  of  the  third  article  of  the  Constitution.  And,  as 
Mr.  Webster  points  out,  the  resident  alien  has  a  privilege 
which  is  denied  to  the!  citizen.  The  widows  and  children 
of  the  citizens  who  lost  their  lives  by  mob  violence  may  sue 
the  leaders  and  members  of  the  mob  only  in  the  courts  of 


187 

the  State  of  Louisiana,  while  the  widows  and  children 
of  the  Italian  subjects  who  suffered  death  have  the  right  to 
sue  each  member  of  the  mob,  not  only  in  the  State  courts, 
but  also  before  the  Federal  tribunals  for  the  district  of 
Louisiana. 

Provision  is  made  in  the  revised  civil  code  of  Louisiana 
for  redress  of  such  grievances  as  the  widows  and  children 
of  the  victims  of  the  mob  may  plead.  I  quote: 

ART.  2314.  Every  act  whatever  of  man  that  causes  damage  to  an- 
other obliges  him  by  whose  fault  it  happened  to  repair  it.  The  right 
of  this  action  shall  survive,  in  case  of  death,  in  favor  of  'the  minor 
children  and  widow  of  the  deceased,  or  either  of  them,  and,  in  default 
of  these,  in  favor  of  the  surviving  father  or  mother,  or  either  of  them, 
for  the  space  of  one  year  from  the  death. 

ART.  2316.  Every  person  is  responsible  for  the  damage  he  occasions 
not  merely  by  his  act,  but  by  his  negligence,  his  imprudence,  or  his 
want  of  skill. 

ART.  2324.  He  who  causes  another  person  to  do  an  unlawful  act,  or 
assists  or  encourages  in  the  commission  of  it,  is  answerable  in  solido 
with  that  person  for  the  damage  caused  by  such  act. 

The  Government  of  the  United  States  would  feel  justi-  ac?eristfcs  ofhthe 
fied  in  resting  on  the  argument  and  conclusion  of  Mr.  J^*8 of  1851  and 
Webster  if  the  mob  of  March  14,  1891,  did  not,  in  some 
of  its  characteristics,  differ  from  the  mob  of  1851.  But  it 
is  due  to  entire  candor,  due  to  this  Government,  and  due 
to  the  Government  of  Italy  to  point  out  certain  differ- 
ences of  which  the  Government  of  the  United  States  is 
honorably  bound  to  take  notice.  In  the  case  of  the  mob 
of  1851  Mr.  Webster  asserts  that  "  no  personal  injury  was 
offered  to  anyone;"  that  "the  police  and  other  legal 
authorities  did  all  that  was  possible  to  preserve  the  peace 
and  arrest  the  rioters;"  that  "the  mob  acted  in  the  heat 
of  blood,  and  not  in  pursuance  of  any  predetermined  plan 
or  purpose  of  injury  or  insult;"  that  "the  mob  was  com- 
posed of  irresponsible  persons,  the  names  of  none  of  whom 
are  known  to  the  Government  of  the  United  States,  nor, 
so  far  as  the  Government  is  informed,  to  its  officers  or 
agents  in  New  Orleans." 

As  promptly  as  possible  after  the  lamentable  occurrence 
at  New  Orleans  the  President  directed  the  Attorney- 
General  to  cause,  through  his  Department,  a  full  inquiry  to 
be  made  into  all  the  facts  connected  therewith,  and  solicited 
his  opinion  whether  an}'  criminal  proceedings  would  lie 
under  the  Federal  laws  in  the  Federal  courts  against  per- 
sons charged  with  the  killing  of  Italian  subjects.  He  has 
not  yet  received  the  official  report.  If  it  be  found  that  a 


188 

prosecution  can  be  maintained  under  the  statutes  of  the 
United  States,  the  case  will  be  presented  to  the  next  grand 
jury  according  to  the  usual  methods  of  criminal  adminis- 
tration. But  if  it  shall  be  found,  as  seems  probable,  that 
criminal  proceedings  can  only  be  taken  in  the  courts  of 
Louisiana,  the  President  can  in  this  direction  do  no  more 
than  to  urge  upon  the  State  officers  the  duty  of  promptly 
bringing  the  offenders  to  trial.  This  was  done  in  his  tele- 
gram to  the  governor  of  Louisiana  as  early  as  the  15th  of 
March. 

If  it  shall  result  that  the  case  can  be  prosecuted  only  in 
the  State  courts  of  Louisiana,  and  the  usual  judicial  inves- 
tigation and  procedure  under  the  criminal  law  is  not  re- 
sorted to,  it  will  then  be  the  duty  of  the  United  States  to 
consider  whether  some  other  form  of  redress  ma}'  be 
asked.  It  is  understood  that  the  State  grand  jury  is  now 
investigating  the  affair,  and,  while  it  is  possible  that  the 
juiy  may  fail  to  present  indictments,  the  United  States 
can  not  assume  that  such  »will  be  the  case. 
united  states  The  United  States  did  not  by  the  treaty  with  Italy  be- 

does   not  insure  J  J  J 

lives  or  property  come  the  insurer  of  the  lives  or  propertv  of  Italian  sub- 

of    Italians     by  _  ^  _  . 

treaty.  jects  resident  within  our  territory.     No  government  is 

able,  however  high  its  civilization,  however  vigilant  its 
police  supervision,  however  severe  its  criminal  code,  and 
however  prompt  and  inflexible  its  criminal  administration, 
to  secure  its  own  citizens  against  violence  promoted  by 
individual  malice  or  by  sudden  popular  tumult.  The  for- 
eign resident  must  be  content  in  such  cases  to  share  the 
same  redress  that  is  offered  by  the  law  to  the  citizen,  and 
has  no  just  cause  of  complaint  or  right  to  ask  the  interpo- 
sition of  his  country  if  the  courts  are  equally  open  to  him 
for  the  redress  of  his  injuries. 
when  indem-  The  treaty  in  the  first,  second,  third,  and,  notablv,  in 

nity     may    not,  1-1  •    i  i         IT-,       ^i  -i, 

and  when  it  the  twenty-third  articles,  clearly  limits  the  rights  guar- 
cianned.  antied  to  the  citizens  of  the  contracting  powers  in  the  ter- 

ritory of  each  to  equal  treatment  and  to  free  access  to  the 
courts  of  justice.  Foreign  residents  are  not  made  a  f  avored 
class.  It  is  not  believed  that  Italy  would  desire  a  more 
stringent  construction  of  her  duty  under  the  treaty. 
Where  the  injury  inflicted  upon  a  foreign  resident  is  not 
the  act  of  the  Government  or  of  its  officers,  but  of  an 
individual  or  of  a  mob,  it  is  believed  that  no  claim  for 
indemnity  can  justly  be  made,  unless  it  shall  be  made  to 
appear  that  the  public  authorities  charged  with  the  peace 
of  the  community  have  connived  at  the  unlawful  act,  or, 


189 

having  timely  notice  of  the  threatened  danger,  have  been 
guilty  of  such  gross  negligence  in  taking  the  necessary 
precautions  as  to  amount  to  connivance. 

If,  therefore,  it  should  appear  that  among  those  killed 
by  the  mob  at  New  Orleans  there  were  some  Italian  subjects 
who  were  resident  or  domiciled  in  that  city,  agreeably  to 
our  treaty  with  Italy,  and  not  in  violation  of  our  immi- 
gration laws,  and  who  were  abiding  in  the  peace  of  the 
United  States  and  obeying  the  laws  thereof  and  of  the  State 
of  Louisiana,  and  that  the  public  officers  charged  with  the 
duty  of  protecting  life  and  property  in  that  city  connived 
at  the  work  of  the  mob,  or,  upon  proper  notice  or  infor- 
mation of  the  threatened  danger,  failed  to  take  any  steps 
for  the  preservation  of  the  public  peace  and  afterwards  to 
bring  the  guilt}7  to  trial,  the  President  would,  under  such 
circumstances,  feel  that  a  case  was  established  that  should 
be  submitted  to  the  consideration  of  Congress  with  a  view 
to  the  relief  of  the  families  of  the  Italian  subjects  who  had 
lost  their  lives  by  lawless  violence. 

Accept,  etc.,  JAMES  G.  ELAINE. 

To  conclude  the  diplomatic  history  of  this  case 
the  following-  extracts  are  given  from  official  records,0 
in  which  an  indemnity  was  offered  and  accepted. 

Mr.  Blaine  to  Marquis  Imperiali. 

DEPARTMENT  OF  STATE, 

Washington,  April  12,  1892. 

SIR:  I  congratulate  you  that  the  difficulty  existing  be- 
tween the  United  States  and  Italy  growing  out  of  the 
lamentable  massacre  at  New  Orleans  in  March  of  last 
3Tear  is  about  to  be  terminated.  The  President,  feeling 
that  for  such  an  injury  there  should  be  ample  indemnity, 
instructs  me  to  tender  you  125,000  francs.  The  Italian 
Government  will  distribute  this  sum  among  the  families 
of  the  victims. 

While  the  injury  was  not  inflicted  directly  by  the  United 
States,  the  President  nevertheless  feels  that  it  is  the 
solemn  duty,  as  well  as  the  great  pleasure,  of  the  National 
Government  to  pay  a  satisfactory  indemnity.  .  .  . 

JAMES  G.  BLAINE. 

«  United  States  Foreign  Relations,  1891,  pp.  727,  728. 


190 

Marquis  Imperial!  accepted  the  sum  in  behalf  of 
the  Italian  Government  in  a  letter  of  the  same  date 
in  which  he  says,' in  part: 

The  King's  Government  does  not  hesitate  to  accept  this 
indemnity  without  prejudice  to  the  judicial  steps  which  it 
may  be  proper  for  the  parties  to  take,  and,  considering 
the  redress  obtained  sufficient.  .  .  . 

CASE    OF    ANTONIO    ABBAGNATO,    AN    ITALIAN     SUBJECT. 

(Vol.  62,  Federal  Reporter,  p.  240.    Case  of  City  of  New  Orleans  v.  Abbagnato. 
Decided  May  29,  1894.) 

of  This  action  was  brought  by  the  mother  of  An- 
tonio Abbagnato  against  the  city  of  New  Orleans 
for  damages  for  the  death  of  her  son,  who  had  been 
killed,  with  others,  in  March,  1891,  by  a  mob  which 
had  broken  into  the  parish  jail  without  any  ade- 
quate attempt  at  resistance  on  the  part  of  the  con- 
stituted authorities  of  the  city.  The  victims  had 
been  tried  before  the  criminal  district  court  for  the 
parish  of  New  Orleans  for  the  murder  of  the  chief 
of  police  of  New  Orleans,  and  Abbagnato  and  five 
of  the  coaccused  had  been  acquitted  by  the  ver- 
dict of  the  jury,  and  mistrial  had  been  found  in 
the  case  of  three  others  of  the  coaccused.  Pending 
further  legal  proceedings  all  the  coaccused,  includ- 
ing those  acquitted  and  those  as  to  whom  there  had 
been  a  mistrial,  were  reincarcerated  in  the  New 
Orleans  parish  prison,  where  they  met  their  deaths 
at  the  hand  of  a  mob,  as  stated  abpve. 

At  the  trial  the  jury  found  for  the  plaintiff,  and 
judgment  for  the  plaintiff  was  entered  on  the  ver- 
dict. The  defendant  brought  error.  The  case  was 
heard  before  the  Circuit  Court  of  Appeals,  Fifth 
Circuit. 

Judge  PARDEE  delivered  the  opinion  of  the  court, 
saying  in  part: 

Rights  of  itai-     The  treaty  between  the  kingdom  of  Italy  and  the  United 
same  as  those  of  States  proclaimed  November  23,  1871,  guaranties  to  the 

United     States    .    .  . 

citizens.  citizens  of  either  nation  in  the  territory  of  the  other  ''the 


191 

most  constant  protection  and  security  for  their  persons 
and  property,"  and  further  provides  that  "they  shall 
enjoy  in  this  respect  the  same  rights  and  privileges  as  are 
or  shall  be  granted  to  the  natives  on  their  submitting 
themselves  to  the  conditions  imposed  upon  the  natives." 
Treaty  of  1871,  art.  3  (17  Stat.  845).  This  treaty  applies 
to  this  case  only  so  far  as  to  require  that  the  rights  of  the 
plaintiff  shall  be  adjudicated  and  determined  exactly  the 
same  as  if  she  were,  and  her  deceased  son  had  been,  a 
native  of  the  United  States.  .  .  . 

The  city  of  New  Orleans,  by  her  pleadings,  admits  the    Li*b.iiity    of 

*  '      J  .         .  municipahtiesin 

gross  negligence  charged  in  the  petition  in  the  perform-  damages  for  m- 

"  .  jury  at  the  hands 

ance  of  the  duties  devolving  upon  the  municipality  under  of  a  mob. 
the  constitution  and  laws  of  the  state  above  referred  to, 
whereby  Abbagnato  lost  his  life  at  the  hands  of  a  mob 
while  in  the  custody  of  the  law;  and  the  question  pre- 
sented in  this  case  is  whether,  on  such  admission  of  facts, 
the  city  can  be  held  liable  in  damages.  It  is  well  settled 
that  at  common  law  no  civil  action  lies  for  injury  to  a 
person  which  results  in  his  death.  .  .  .  The  rule  is  the 
same  under  the  civil  law,  according  to  the  decisions  of  the 
Louisiana  supreme  court.  ...  In  the  absence  of  a 
statute  giving  a  remedy,  public  or  municipal  corporations 
are  under  no  liability  to  pay  for  the  property  of  individ- 
uals destroyed  by  mobs  or  riotous  assemblages.  .  .  . 

In  the  case  of  State  v.  Mayor,  etc.,  of  New  Orleans,  109 
U.  S.  285,  3  Sup.  Ct.  211,  the  supreme  court  of  the  United 
States  held  that  the  right  to  demand  reimbursement  from 
a  municipal  corporation  for  damages  caused  by  a  mob  is 
not  founded  on  contract.  It  is  a  statutory  right,  and  may 
be  given  or  taken  away  at  pleasure.  .  .  . 

If  this  be  the  rule  with  regard  to  the  liability  of  munic- 
ipal corporations  for  damages  to  property  committed  by 
mobs  or  riotous  assemblages,  a  fortiori  it  must  be  the  rule 
with  regard  to  the  liability  of  municipal  corporations  for 
damages  resulting  in  the  loss  of  life  from  the  acts  of 
mobs  or  riotous  assemblages.  The  reason  of  the  rule  is  Reasons  for 

.    .  .          rule. 

obvious.  Actions  to  recover  from  municipal  corporations 
damages  resulting  from  the  acts  of  mobs  and  riotous 
assemblages  are  actions  to  hold  such  corporations  liable  in 
damages  for  a  failure  to  preserve  the  public  peace.  The 
preservation  of  the  public  peace  primarily  devolves  upon 
the  sovereign.  Under  our  system  of  government,  the 
Mate  is  that  sovereign.  U.  S.  v.  Cruikshank,  92  U.  S. 
54^-553;  Western  College  v.  City  of  Cleveland,  12  Ohio 


192 

St.  377.  When,  by  the  action  of  the  state,  a  municipal 
corporation  is  charged  with  the  preservation  of  the  peace, 
and  empowered  to  appoint  police  boards  and  other  agencies 
to  that  end,  the  corporation  pro  tanto  is  charged  with  gov- 
ernmental functions  in  the  public  interest  and  for  public 
purposes,  and  is  entitled  to  the  same  immunity  as  the 
sovereign  granting  the  power  for  negligence  in  preserving 
the  public  peace  unless  such  liability  is  expressly  declared 
by  the  sovereign.  This  proposition  is  so  well  recognized 
that  not  a  well-considered,  adjudicated  case  can  be  found 
in  the  books  where,  in  the  absence  of  an  express  statute, 
any  municipality  has  been  held  liable  for  the  neglect  of 
its  officers  to  preserve  the  peace.  .  .  . 

Exemption  of  The  exemption  of  municipalities  from  liability  to  suits 
recognized  in  for  damages  for  the  negligence  of  officers  and  agents  in 
the  execution  of  the  governmental  functions  granted  by 
the  state,  in  the  public  interest,  and  in  the  absence  of  stat- 
utory liability,  is  recognized  in  Louisiana,  as  shown  by 
the  decisions  of  the  supreme  court  of  the  state.  ...  It 
follows,  therefore,  that  in  order  to  recover  damages 
against  the  city  of  New  Orleans  for  the  taking  of  human 
life  by  a  mob  in  said  city,  no  matter  what  the  negligence 
of  the  city  officials  may  have  been,  there  must  be  a  statute 
of  the  state  of  Louisiana  expressly  or  b}T  necessary  impli- 
cation giving  a  remedy  in  such  cases.  .  .  . 

NO  damages.  As  we  find  no  law  of  the  state  of  Louisiana  giving  a 
remedv  in  damages  against  a  municipal  corporation  for  the 
acts  done  by  a  mob  resulting  in  the  loss  of  human  life,  we 
are  c  cupelled  to  reverse  the  judgment  of  the  court  below. 


ARREST   OF  DESERTERS   UNDER   FOREIGN   FLAG   IN 
HOME  JURISDICTION. 

PROCEDURE  RECOMMENDED. 

Iii  1*93  deserters  from  the  U.  S.  S.  Chicago  were 
arrested  on  board  the  British  steamer  Berlin  in  the 
harbor  of  New  York.  As  some  of  these  deserters 
were  enrolled  on  the  articles  of  the  vessel,  and  ques- 
tions of  identity,  etc.,  might  have  arisen,  it  was 
deemed  wise  to  have  the  arrest  on  board  made  by 
the  local  police  instead  of  by  naval  officers  direct. 


193 

This  course  was  suggested  by  the  British  ambassa- 
dor and  adopted  by  the  Department  of  State  in  its 
letter  of  advice  to  the  Navy  Department.  As  a 
matter  of  procedure  it  is  desirable  from  many  points 
of  view  to  have  such  arrests  made  through  the  aid 
of  local  police. 


AMERICAN  CITIZENS   EXILED  FROM  FOREIGN  COUN- 
TRIES FOR  CAUSE. 

AS  TO  THEIR  RIGHT  TO   REENTER  WITHOUT   PERMIS- 
SION. 

The  following  quotation  is  from  a  letter  to  the 
Secretary  of  the  Navy  from  the  Secretary  of  State, 
dated  July  15,  1899,  respecting  Americans  who 
had  been  allowed  to  leave  a  foreign  country  in  which 
they  had  been  implicated  in  an  insurrection.  The 
position  is  taken  that  the  American  Government  can 
not  intervene  in  their  behalf  should  they  return  to 
that  foreign  country  and  be  recaptured: 

SIR:  1  have  the  honor  to  acknowledge  the  receipt  of    case  of  certain 

,  £     ,       _,n  *         ,    .  .       ,  „  American    citi- 

3rour  letter  or  the  Iztn  ultimo,  inclosing  a  copy  or  one  to  zens  in  Nicara- 
you  from  Lieutenant-Commander  Kimhall,  IT.  S.  N.,  com- 
manding officer  of  the  Vixen,  at  Bluefields,  in  which  he 
requests  general  instructions  as  to  the  policy  of  this  Gov- 
ernment respecting  the  protection  of  such  American  citi- 
zens as,  having  taken  part  in  the  recent  insurrection  at 
that  place,  were  allowed  to  leave  the  country,  but  who 
may  again  return  thither  and  be  apprehended  and  prose- 
cuted by  the  Nicaraguan  authorities. 

You  request  to  be  advised  of  the  views  of  this  Depart- 
ment on  the  subject. 

In  reply  I  have  the  honor  to  inform  you  that  an  instruc-    instruction  to 
tion,  a  copv  of  which  is  herewith  inclosed,  was  sent  to  our  san  'juan  del 

Norte 

consul  at  San  Juan  del  Norte  on  May  13  last,  informing 
him  that  Americans  who  were  implicated  in  that  insurrec- 
tion and  who  have  returned  to  Nicaragua  have  placed  them- 
sclves  beyond  the  power  of  this  Government  to  intervene 
in  their  behalf,  should  they  be  recaptured. 

The  cases  thus  foreshadowed  do  not  come  under  either 
the  Barrundia  or  the  Gomez  case,  referred  to  by  Lieutenant- 

2056—04 13 


194 

Commander  Kimball.  These  persons  were  natives  of  the 
country,  in  transit,  and  on  board  an  American  ship  enter- 
ing1 a  port  of  the  country  without  intent  to  land.  The  33 
men  in  question  were  expelled  from  Nicaraguan  territory, 
and  it  is  apprehended  that  they  may  attempt  to  reenter 
Nicaraguan  jurisdiction.  Many,  if  not  most  of  them  are 
understood  to  be  citizens  of  the  United  States. 
Proper  action  Effort  should  be  made  to  warn  such  persons  in  time  of 

for  a  naval  com- 
mander, the  risk  the}T  run  in  reentering  Nicaragua,  and  if  occasion 

require,  they  might  be  temporarily  received  on  an  Ameri- 
can naval  vessel  before  they  land,  and  before  any  process 
of  arrest  under  due  warrant  of  law  be  attempted  against 
them.  If,  however,  they  actually  land,  or  are  arrested  by 
judicial  authority  on  a  merchant  ship  in  port  before  endeav- 
oring to  land,  the  naval  commander  could  not  claim  their 
release  or  delivery  to  him,  but  would  have  to  limit  his 
action  to  the  exercise  of  good  offices  so  far  as  possible,  in 
conjunction  with  the  consular  representatives  of  the  United 
States,  to  secure  for  them  fair  and  open  process  of  law, 
with  every  opportunity  for  defense,  and  if  convicted,  leni- 
encv  of  treatment. 


SUBMARINE  CABLES  IN  ENEMY  COUNTRY. 
SUBJECT  TO  DAMAGE  AS  INCIDENT  OF  WAR. 

(Opinions  of  Attorney-General  of  United  States,  Vol.  XXII,  p.  315.) 

The  following  is  a  portion  of  an  opinion  rendered 
by  the  Attorney- General  of  the  United  States  "rela- 
tive to  a  claim  of  the  British  Eastern  Extension 
Australasia  and  China  Telegraph  Company  for 
damages  and  losses  alleged  to  have  been  sustained 
in  consequence  of  the  cutting  of  its  cable  at  Manila 
during  the  war  with  Spain  and  in  response  to  a  re- 
quest for  an  opinion  as  to  whether  this  Government 
is  in  any  way  liable  for  those  damages  and  losses :" 

NO  ground  for     Property  of  a  neutral  permanently  situated  within  the 

cutting-  of  neu- territory  of  an  enemy  is,  from  its  situation,  liable  to  dam- 

emy  waters.       age  f rom  the  lawful  operations  of  war,  which  this  cutting 

is  conceded  to  have  been,  and  no  compensation  is  due  for 

such  damage. 

It  is  said,  however,  that  this  rule  has  never  been  applied 
to  a  cable;  that  the  whole  utility  of  the  cable  over  many 


195 

miles  is  as  much  destroyed  by  cutting  it  in  territorial  wa- 
ters as  by  cutting  it  on  the  high  seas,  which  last  act,  it  is 
claimed,  would  undoubtedly  entitle  the  owners  to  compen- 
sation; and  that  the  United  States  admiral  did  not  merely 
aim  at  preventing  the  use  of  the  cable  by  the  Spaniards, 
but  also  at  using  it  himself. 

Do  these  reasons  withdraw  this  property  from  the  rule 
which  has  been  stated  ? 

In  the  first  place,  that  is  a  rule  applying  to  property  of 
a  neutral  which  he  has  placed  within  the  territory  of  our 
enenn%  which  property  our  necessary  military  operations 
damage  or  destroy.  It  takes  no  account  of  the  character 
of  the  property,  but  only  of  its  location,  and  no  account 
of  any  motives  of  its  owner  or  of  the  military  officer  who 
finds  it  necessary  to  meddle  with  it  in  hurting  the  enemy. 
He  sees  it  across  his  path  and  brushes  it  away,  and  the  rule 
cited  says  that  the  owner,  by  putting  his  property  in  the 
country,  took  the  chance  of  a  war  against  it  and  of  all  law- 
ful military  acts  to  carry  the  war  to  a  successful  issue. 

It  argues  nothing  that  cables  have  not  heretofore  been 
the  subject  of  any  discussion  of  this  rule.  The  same  might 
be  said  of  many  kinds  of  propert3r,  either  because  they 
happened  not  to  be  injured  or  because  the  rule  was  so  well 
understood  that  a  discussion  was  deemed  superfluous.  It 
is  necessary  to  show  why  the  cable  property  is  exempt 
from  the  rule,  and  not  that  the  rule  has  ever  been  applied 

to  it. 

******* 

I  am  of  the  opinion,  therefore,  that  upon  the  law  of  the 
case  there  is  no  ground  for  indemnity. 


CONTINUOUS  VOYAGES. 
CASE  OF  THE  BUNDESRATH  IN  THE  SOUTH  AFRICAN  WAR. 

(British  Parliamentary  Paper,  Africa  No.  1,  1900,  Cd  33.) 

During  the  South  African  war  the  German  mail 
steamer  Bundesrath,  bound  for  Delagoa  Bay,  was 
reported  from  Aden  as  suspected  of  carrying  ammu- 
nition for  the  enemy,  also  with  carrying  persons  in- 
tending to  be  combatants  against  the  British  forces 
in  South  Africa.  The  Bundesratli  was  seized  at  a 
later  date  by  H.  M.  S.  Magicienne  and  brought  into 


196 

Durban.  The  mails  of  the  Bundesrath  were  released 
and  turned  over  to  the  German  vessel  of  war  Condor. 
No  contraband  of  war  being  found  on  the  Bundes- 
rath, the  vessel  and  cargo  were  released.  In  the 
correspondence  that  arose  concerning  this  case  the 
positions  of  the  British  and  German  Governments 
were  stated  in  the  following  letters: 

Count  Hatzfeldt  to  the  Marquess  of  Salisbury.     (Received 
January  4-) 

[Translation.] 

GERMAN  EMBASSY,  LONDON,  January  4,  1900. 
views  of  Ger-     MY  LORD,  With  reference  to  the  seizure  of  the  German 

man    Govern-  ,,  _,        ,  ,   ,,  -  1-1       i»  i      i  < 

ment.  steamer  Bundesrath  ny  an  English  ship  of  war,  I  have 

the  honor  to  inform  your  excellency,  in  accordance  with 
instructions  received,  that  the  Imperial  Government,  after 
carefully  examining  the  matter  and  considering  the  judi- 
cial aspects  of  the  case,  are  of  opinion  that  proceedings 
before  a  Prize  Court  are  not  justified. 

This  view  is  grounded  on  the  consideration  that  proceed- 
ings before  a  Prize  Court  are  only  justified  in  cases  where 
the  presence  of  contraband  of  war  is  proved,  and  that, 
whatever  may  have  been  on  board  the  "Bundesrath," there 
could  have  been  no  contraband  of  war,  since,  according  to 
recognized  principles  of  international  law,  there  can  not 
be  contraband  of  war  in  trade  between  neutral  ports. 

This  is  the  view  taken  by  the  British  Government  in  1863 
in  the  case  of  the  seizure  of  the  "Springbok"  as  against 
the  judgment  of  the  American  Prize  Court,  and  this  view 
is  also  taken  by  the  British  Admiralty  in  their  "  Manual  of 
Naval  Prize  Law"  of  1866. 

The  Imperial  Government  are  of  opinion  that,  in  view 
of  the  passages  in  that  Manual:  "A  vessel's  destination 
should  be  considered  neutral,  if  both  the  port  to  which  she 
is  bound  and  every  intermediate  port  at  which  she  is  to 
call  in  the  course  of  her.  voyage  be  neutral,"  and,  "the 
destination  of  the  vessel  is  conclusive  as  to  the  destination 
of  the  goods  on  board,"  they  are  fully  justified  in  claiming 
the  release  of  the  "Bundesrath"  without  investigation  by 
a  Prize  Court,  and  that  all  the  more  because,  since  the  ship 
is  a  mail-steamer  with  a  fixed  itinerary,  she  could  not  dis- 
charge her  cargo  at  any  other  port  than  the  neutral  port 
of  destination. 


197 

In  view  of  what  is  stated  above,  I  have  the  honor  to  re- 
quest your  Excellency,  in  accordance  with  instructions 
from  the  Imperial  Government,  and  with  the  reservation 
of  what  may  further  be  decided,  to  order  the  release  of  the 
"  Bundesrath,"  and  since  she  was  seized  more  than  a  week 
ago  and  the  Imperial  Government  have  not  yet  been  in- 
formed of  the  reasons  for  the  seizure,  I  should  be  obliged 
if  I  could  be  favored  with  a  reply  at  your  earliest  con- 
venience. 

I  have,  etc.,  P.  HATZFELDT. 

The  Marquess  of  Salisbury  to  Sir  F.  Lascelles. 

FOREIGN  OFFICE,  January  10,  1900. 

SIR,  I  transmit  to  your  Excellency  herewith  the  transla- 
tion of  a  note  which  I  have  received  from  the  German 
Ambassador  at  this  Court  with  regard  to  the  seizure  of 
the  German  steamer  "  Bundesrath"  by  Her  Majestj^'s  ship 
"  Magicienne,"  on  suspicion  of  carrying  contraband  of  war 
destined  for  the  South  African  Republics. 

In  this  note  Count  Hatzfeldt  states  that  the  German 
Government,  after  careful  examination  of  the  judicial 
aspects  of  the  case,  are  of  the  opinion'  that  proceedings 
before  a  Prize  Court  are  not  justified.  They  base  this 
view  on  the  doctrine  that,  according  to  the  recognized 
principles  of  international  law,  no  question  of  contraband 
of  war  arises  in  trade  between  neutral  ports.  In  support 
of  this  argument  they  cite  the  view  which  they  state  "to 
have  been  taken  by  Her  Majesty's  Government  in  1863  in 
the  case  of  the  seizure  of  the  "Springbok,"  as  against  the 
Judgment  of  the  United  States'  Prize  Court,  and  that 
which  they  consider  to  be  taken  "by  the  British  Admiralty 
in  their  'Manual  on  Naval  Prize  Law'  of  1866." 

Before  examining  the  doctrine  thus  put  forward  by  the 
German  Government,  it  will  be  desirable  to  remove  some 
errors  of  fact  in  regard  to  the  authorities  which  they  cite. 

It  is  not  the  case  that  the  British  Government  in  1863  i 
raised  any  claim  or  contention  against  the  Judgment  of  the 
United  States'  Prize  Court  in  the  case  of  the  "Springbok." 
On  the  first  seizure  of  that  vessel,  and  on  an  ex  parte  and 
imperfect  statement  of  the  facts  by  the  owners,  Earl  Rus- 
sell, then  Secretary  of  State  for  Foreign  Affairs,  informed 
Her  Majesty's  Minister  at  Washington  that  there  did  not 
appear  to  be  any  justification  for  the  seizure  of  the  vessel 
and  her  cargo,  that  the  supposed  reason,  namely,  that 


198 

h ^Government"  there  wer^  articles  in  the  manifest  not  accounted  for  by 
the  captain,  certainly  did  not  warrant  the  seizure,  more 
especially  as  the  destination  of  the  vessel  appeared  to 
have  been  bond  fide  neutral,  but  that,  inasmuch  as  it  was 
probable  that  the  vessel  had  by  that  time  been  carried 
before  a  Prize  Court  of  the  United  States  for  adjudication, 
and  that  the  adjudication  might  shortly  follow,  if  it  had 
not  already  taken  place,  the  only  instruction  that  he  could 
at  present  give  to  Lord  Lyons  was  to  watch  the  proceed- 
ings and  the  Judgment  of  the  Court,  and  eventually 
transmit  full  information  as  to  the  course  of  the  trial  and 
its  results. 

The  Prize  Court  of  the  United  States,  in  a  long  and 
considered  Judgment,  decreed  confiscation  both  of  the 
vessel  and  the  cargo.  The  owners  applied  for  the  inter- 
vention of  Her  Majesty's  Government,  and  forwarded  in 
support  of  their  application  an  opinion  by  two  English 
Counsel  of  considerable  eminence. 

The  real  contention  advanced  in  this  opinion  was  that 
the  goods  were,  in  fact,  bond  fide  consigned  to  a  neutral  at 
Nassau.  It  cannot,  therefore,  be  adduced  in  support  of 
the  doctrine  now  advanced  by  the  German  Government. 
But  Her  Majesty's  Government,  after  consulting  the  Law 
Officers  of  the  Crown,  distinctly  refused  to  make  any  dip- 
lomatic protest  or  enter  any  objection  against  the  decision 
of  the  United  States'  Prize  Court,  nor  did  they  ever  express 
any  dissent  from  that  decision  on  the  grounds  on  which  it 
was  based. 

The  volume  which  is  described  in  Count  Hatzfeldt's 
note  as  "The  Manual  of  Naval  Prize  Law  of  the  British 
Admiralty,"  and  from  which  Count  Hatzfeldt  quotes 
certain  phrases  as  expressing  the  view  of  the  Lords  Com- 
missioners on  this  subject,  is,  in  fact,  a  book  originally 
compiled  by  Mr.  (now  Sir  Godfrey)  Lushington,  which 
was  published  under  the  authority  of  the  Lords  Commis- 
sioners as  stating  in  a  convenient  form  the  general  prin- 
ciples by  which  Her  Majesty's  officers  are  guided  in  the 
exercise  of  their  duties;  but  it  has  never  been  asserted 
and  can  not  be  admitted  to  be  an  exhaustive  or  authorita- 
tive statement  of  the  views  of  the  Lords  Commissioners. 
The  preface  to  the  book  states  that  it  does  not  treat  of 
questions  which  will  ultimately  have  to  be  disposed  of  by 
the  Prize  Court,  but  which  do  not  concern  the  officer's 
duty  of  the  place  and  hour.  The  directions  in  this  Manual, 
which  for  practical  purposes  were  sufficient  in  the  case  of 


199 
wars  such  as  have  been  waged  by  Great  Britain  in  the    views  of  Brit- 

ish  Government. 

past,  are  quite  inapplicable  to  the  case  which  has  now 
arisen  of  war  with  an  inland  State,  whose  only  communi- 
cation with  the  sea  is  over  a  few  miles  of  railway  to  a 
neutral  port.  In  a  portion  of  the  Introduction  the  author 
discusses  the  question  of  destination  of  the  cargo,  as  dis- 
tinguished from  destination  of  the  vessel,  in  a  manner  by 
no  means  favorable  to  the  contention  advanced  in  Count 
Hatzfeldt's  note.  Moreover,  Professor  Holland,  who 
edited  a  revised  edition  of  this  Manual  in  1888,  in  a  recent 
letter  published  in  the  "Times,"  has  expressed  an  opinion 
altogether  inconsistent  with  the  view  which  the  German 
Government  endeavor  to  found  upon  the  words  of  the 
Manual. 

In  the  opinion  of  Her  Majesty's  Government,  the  pas- 
sage cited  from  the  Manual,  "that  the  destination  of  the 
vessel  is  conclusive  as  to  the  destination  of  the  goods  on 
board,"  has  no  application  to  such  circumstances  as  have 
now  arisen. 

It  cannot  apply  to  contraband  of  war  on  board  of  a 
neutral  vessel  if  such  contraband  was  at  the  time  of  seizure 
consigned  or  intended  to  be  delivered  to  an  agent  of  the 
enemy  at  a  neutral  port,  or,  in  fact,  destined  for  the 
enemy1*  country. 

The  true  view  in  regard  to  the  latter  category. of  goods 
is,  as  Her  Majest}T's  Government  believe,  correctly  stated 
in  paragraph  813  of  Professor  Bluntschli's  "Droit  Inter- 
national Codifie,"  as  follows  (I  cite  from  the  French  trans- 
lation of  187-i,  2nd  edition,  of  the  work  of  this  eminent 
German  jurist): — 

"Si  les  navires  ou  marchandises  ne  sont  expedies  a  des- 
tination d'un  port  neutre  que  pour  mieux  venir  en  aide  a 
1'ennemi  il  y  aura  contrebande  de  guerre  et  la  confiscation 
sera  justifiee." 

Her  Majesty's  Government  are  unable  therefore  to  agree 
that  there  are  grounds  for  ordering  the  release  of  the 
"Bundesrath"  without  examination  by  the  Prize  Court  as 
to  whether  she  was  carrying  contraband  of  war  belonging 
to,  or  destined  for,  the  South  African  Republics.  But 
they  fully  recognize  how  desirable  it  is  that  this  examina- 
tion should  be  carried  through  at  the  earliest  possible 
moment,  and  that  all  proper  consideration  should  be  shown 
for  the  owners  and  for  innocent  passengers  and  merchan- 
dise on  board  of  her.  Repeated  and  urgent  instructions 
have  been  sent  by  telegraph  for  this  purpose,  and  arrange- 


200 

ments  have  been  made  for  the  speed}'  transmission  of  the 
mails. 

Your  excellency  will  address  a  note  to  the  German  Min- 
ister for  Foreign  Affairs  containing  the  above  observations. 
I  am,  etc., 

SALISBURY. 

The  Marquess  of  Salisbury  to  Sir  F.  Lascelles. 

FOREIGN  OFFICE,  January  11,  1900. 
SIR,  Baron  von  Eckardstein  called  on  me  yesterday,  and 
in  the  course  of  conversation  on  the  subject  of  the  recent 
seizures  of  German  mail-steamers,  informed  me  that  in 
view  of  the  protest  which  I  had  made  against  the  position 
taken  up  by  the  German  Government  that  there  could  not 
be  any  question  of  contraband  of  trade  between  neutral 
ports,  they  had  decided  to  abstain  from  pressing  or  dis- 
cussing their  opinion  for  the  present  in  order  to  facilitate 
a  speedy  and  amicable  settlement. 

1  am,  etc.,  SALISBURY. 


STATUS  OF  AUXILIARY  CRUISERS  IN  TIME  OF  WAR. 

CASE  OF  THE  UNITED  STATES  CRUISER  YALE  AT  THE 
TIME  OF  THE  CAPTURE  OF  THE  SPANISH  STEAMER 
RITA  DURING  THE  SPANISH-AMERICAN  WAR. 

(Fed.  Rep.,  vol.  89,  p.  763.) 

United  States  District  Judge  Brawley,  October 
13,  1898: 
conditions  of     As  the  proof  shows  that  the  Rita  was  an  unarmed  mer- 

Yale's  service  as  A  . 

an  auxiliary  chant  vessel,  the  captors  are  entitled  to  one-halt  of  the 

cruiser. 

prize  money,  and  Capt.  W.  C.  Wise,  being  in  command 
of  the  capturing  vessel  and  on  independent  duty,  is  entitled 
to  three-twentieths  of  the  amount  allowed  to  the  captors. 
No  other  vessel  being  in  sight  and  entitled  to  share,  the 
only  question  for  determination  is  as  to  the  distribution  of 
the  residue,  and  this  question  arises  out  of  the  somewhat 
anomalous  character  of  the  capturing  vessel.  The  capture 
was  made  May  8,  1898,  by  the  United  States  cruiser  Yale, 
which  prior  to  April  30,  1898,  was  known  as  the  "City  of 
Paris."  She  belonged  to  the  International  Navigation 
Compan3T,  and  was  of  the  class  of  steamships  which,  under 


201 

the  provisions  of  the  act  of  March  3,  1891,  was  subject  to 
be  taken  by  the  United  States  as  a  cruiser  or  transport, 
upon  payment  of  her  actual  value.  By  a  charter  party 
and  supplementary  agreement  entered  into  April  30,  1898, 
between  the  company  and  the  government,  acting  through 
the  secretary  of  the  navy,  possession  of  the  ship  was  trans- 
ferred to  the  government.  B}^  it  she  was  heavily  armed, 
and  converted  into  an  auxiliary  cruiser,  and  her  name 
changed.  The  charter  party  provided  that  the  ship  should 
be  "manned,  victualed,  and  supplied  at  the  expense  of 
the  charterer,"  which  is  also  to  pay  all  other  expenses 
whatsoever,  and  return  the  same  in  good  repair,  less  ordi- 
nary wear  and  tear,  at  the  termination  of  the  chartering, 
which  was  to  be  at  the  will  of  the  charterer.  The  supple- 
mentary agreement  provided  that  the  ship  was  "to  be 
manned  by  her  regular  officers  and  crew,  and  in  addition 
thereto  was  to  take  on  board  two  naval  officers,  a  marine 
officer,  and  a  guard  of  thirty  marines,  and  was  to  be 
victualed  and  supplied  with  two  months'  provisions,  and 
about  four  thousand  tons  of  coal;  the  actual  cost  to  the 
owners  of  such  additional  equipment  and  services  to  be 
reimbursed  by  the  charterer  upon  bills  to  be  certified  by 
the  senior  naval  officer  on  board."  There  were  also  pro- 
visions protecting  the  owner  against  all  expenses  and  lia- 
bility, and  a  provision  that  during  the  continuation  of  the 
supplementary  agreement  the  steamship  was  to  be  "  under 
the  entire  control  of  the  senior  naval  officer  on  board." 
******  * 

The  evidence  fully  establishes  the  fact  that  the  peti-  ^yb 
tioner  Watkins  and  others  of  the  crew  of  the  City  of  Paris,  Yal.e  ;;inf 

J  _  '  service'     of  the 

mentioned  in  his  petition,  although  not  formally  enlisted,  government. 
were  "doing  duty  on  board  and  borne  upon  the  books." 
The}r  were  charged  with  the  navigation  of  the  ship. 
There  was  no  other  crew  on  board  capable  of  performing 
that  service.  From  them  was  selected  the  prize  master 
and  crew  which  brought  the  Rita  into  port  for  condemna- 
tion. If  they  were  not  "in  the  service"  of  the  govern- 
ment while  performing  that  mission,  they  incurred  the 
hazard  of  being  considered  as  pirates. 


202 


MILITARY  OCCUPATION. 

INSTRUCTIONS   OF   THE    PRESIDENT    OF    THE    UNITED 
STATES  A.S  TO  THE    OCCUPATION  OF  SANTIAGO  DE 

CUBA. 

(Proclamations  and  Decrees  during  the  War  with  Spain,  p.  83.) 

GENERAL  ORDERS,!  WAR  DEPARTMENT, 

|  ADJUTANT-GENERAL'S  OFFICE, 
No.  101.  Washington,  July  18,  1898. 

The  following,  received  from  the  President  of  the 
United  States,  is  published  for  the  information  and  guid- 
ance of  all  concerned: 

EXECUTIVE  MANSION, 
Washington,,  July  13,  1898. 
To  the  SECRETARY  OF  WAR. 

SIR:  The  capitulation  of  the  Spanish  forces  in  Santiago 
de  Cuba  and  in  the  eastern  part  of  the  Province  of  San- 
tiago, and  the  occupation  of  the  territory  by  the  forces  of 
the  United  States,  render  it  necessary  to  instruct  the 
military  commander  of  the  United  States  as  to  the  conduct 
which  he  is  to  observe  during  the  military  occupation. 

The  first  effect  of  the  military  occupation  of  the  enemy's 
territory  is  the  severance  of  the  former  political  relations 
of  the  inhabitants  and  the  establishment  of  a  new  political 
power.  Under  this  changed  condition  of  things  the 
inhabitants,  so  long  as  they  perform  their  duties,  are 

^^e^  to  security  in  their  persons  and  property  and  in 
property.  a]j  their  private  rights  and  relations.     It  is  my  desire  that 

the  inhabitants  of  Cuba  should  be  acquainted  with  the 
purpose  of  the  United  States  to  discharge  to  the  fullest 
extent  its  obligations  in  this  regard.  It  will  therefore  be 
the  duty  of  the  commander  of  the  army  of  occupation  to 
announce  and  proclaim  in  the  most  public  manner  that  wo 
come  not  to  make  war  upon  the  inhabitants  of  Cuba,  nor 
upon  any  party  or  faction  among  them,  but  to  protect 
them  in  their  homes,  in  their  employments,  and  in  their 
personal  and  religious  rights.  All  persons  who,  either  by 
active  aid  or  by  honest  submission,  cooperate  with  the 
United  States  in  its  efforts  to  give  effect  to  this  beneficent 
purpose  will  receive  the  reward  of  its  support  and  pro- 
tection. Our  occupation  should  be  as  free  from  severity 
as  possible. 


203 

Though  the  powers  of  the  military  occupant  are  absolute 
and  supreme  and  immediately  operate  upon  the  political 
condition  of  the  inhabitants,  the  municipal  laws  of  the  Municipal  laws 

7  r  hold,  except  for 

conquered  territory,  such  as  affect  private  rights  of  person  cause. 
and  property  and  provide  for  the  punishment  of  crime, 
are  considered  as  continuing  in  force,  so  far  as  they  are 
compatible  with  the  new  order  of  things,  until  they  are 
suspended  or  superseded  by  the  occupying  belligerent  and 
in  practice  they  are  not  usually  abrogated,  but  are  allowed 
to  remain  in  force  and  to  be  administered  by  the  ordinary 
tribunals,  substantially  as  they  were  before  the  occupa- 
tion. This  enlightened  practice  is,  so  far  as  possible,  to 
be  adhered  to  on  the  present  occasion.  The  judges  and 
the  other  officials  connected  with  the  administration  of 
justice  may,  if  they  accept  the  supremacy  of  the  United 
States,  continue  to  administer  the  ordinary  law  of  the 
land,  as  between  man  and  man,  under  the  supervision  of 
the  American  commander  in  chief.  The  native  constabu- 
lary will,  so  far  as  may  be  practicable,  be  preserved.  The 
freedom  of  the  people  to  pursue  their  accustomed  occupa- 
tions will  be  abridged  only  when  it  may  be  necessary 
to  do  so. 

While  the  rule  of  conduct  of  the  American  commander  ,  other    Proce; 

dure  in  case  of 

in  chief  will  be  such  as  has  just  been  defined,  it  will  be  necessity. 
his  duty  to  adopt  measures  of  a  different  kind,  if,  unfor- 
tunately, the  course  of  the  people  should  render  such 
measures  indispensable  to  the  maintenance  of  law  and 
order.  He  will  then  possess  the  power  to  replace  or  expel 
the  native  officials  in  part  or  altogether,  to  substitute  new 
courts  of  his  own  constitution  for  those  that  now  exist,  or 
to  create  such  new  or  supplemental1}'  tribunals  as  may  be 
necessary.  In  the  exercise  of  these  high  powers,  the  com- 
mander must  be  guided  by  his  judgment  and  his  experience 
and  a  high  sense  of  justice. 

One  of  the  most  important  and  most  practical  prob- 
lems with  which  it  will  be  necessary  to  deal  is  that  of  the 
treatment  of  property  and  the  collection  and  administra- 
tion of  the  revenues.  It  is  conceded  that  all  public  funds  erfylblic  prop" 
and  securities  belonging  to  the  government  of  the  country 
in  its  own  right,  and  all  arms  and  supplies  and  other 
movable  property  of  such  government,  may  be  seized  by 
the  military  occupant  and  converted  to  his  own  use.  The 
real  property  of  the  state  he  may  hold  and  administer,  at 
the  same  time  enjoying  the  revenues  thereof,  but  he  is  not 
to  destroy  it  save  in  the  case  of  military  necessity.  All 


204 

public  means  of  transportation,  such  as  telegraph  lines, 
cables,  railwaj's,  and  boats  belonging  to  the  state  may  be 
appropriated  to  his  use,  but  unless  in  case  of  military 
necessity  they  are  not  to  be  destined.  All  churches  and 
buildings  devoted  to  religious  worship  and  to  the  arts  and 
sciences,  all  schoolhouses,  are,  so  far  as  possible,  to  be 
protected,  and  all  destruction  or  intentional  defacement  of 
such  places,  of  historical  monuments  or  archives,  or  of 
works  of  science  or  art,  is  prohibited,  save  when  required 
by  urgent  military  necessit}^. 

Private  prop-  Private  property,  whether  belonging  to  individuals  or 
corporations,  is  to  be  respected,  and  can  be  confiscated 
only  for  cause.  Means  of  transportation,  such  as  tele- 
graph lines  and  cables,  railways  and  boats,  may,  although 
they  belong  to  private  individuals  or  corporations,  be  seized 
by  the  military  occupant,  but  unless  destroyed  under  mili- 
tary necessity  are  not  to  be  retained. 

contributions,      While  it  is  held  to  be  the  right  of  the  conqueror  to  lew 

taxes,    and    du-  °.  . 

ties.  contributions  upon  the  enemy  in  their  seaports,  towns,  or 

provinces  which  may  be  in  his  military  possession  by  con- 
quest and  to  apply  the  proceeds  to  defray  the  expenses  of 
the  war,  this  right  is  to  be  exercised  within  such  limita- 
tions that  it  may  not  savor  of  confiscation.  As  the  result 
of  military  occupation  the  taxes  and  duties  pa}rable  by  the 
inhabitants  to  the  former  government  become  pa}rable  to 
the  military  occupant,  unless  he  sees  fit  to  substitute  for 
them  other  rates  or  modes  of  contribution  to  the  expenses 
of  the  government.  The  moneys  so  collected  are  to  be 
used  for  the  purpose  of  paying  the  expenses  of  govern- 
ment under  the  military  occupation,  such  as  the  salaries 
of  the  judges  and  the  police,  and  for  the  pa}anent  of  the 
expenses  of  the  army. 

Private  property  taken  for  the  use  of  the  army  is  to  be 
paid  for  when  possible  in  cash  at  a  fair  valuation,  and 
when  payment  in  cash  is  not  possible,  receipts  are  to  be 
given. 

occupied  ports  All  ports  and  places  in  Cuba  which  may  be  in  the  actual 
possession  of  our  land  and  naval  forces  will  be  opened  to 
the  commerce  of  all  neutral  nations,  as  well  as  our  own, 
in  articles  not  contraband  of  war  upon  payment  of  the 
prescribed  rates  of  dut}^  which  may  be  in  force  at  the 

time  of  the  importation. 

WILLIAM  McKiNLEY. 

By  order  of  the  Secretary  of  War: 

H.  C.  CORBIN, 

Adjutant-  General. 


205 


RIGHT  OF  MILITARY  AUTHORITIES  TO  IMPOSE  TARIFF 
UPON  IMPORTS  DURING  MILITARY  OCCUPATION. 

Attorney-General  J.  W.  Griggs  (Opinions  Attor- 
ney-General, vol.  22,  p.  562)  says,  August  10, 1899: 

According  to  the  well-settled  principles  of  public  law 
relating  to  territory  held  by  conquest,  and  according  to 
the  adjudication  of  the  Supreme  Court  of  the  United 
States  in  Cross  v.  Harrison,  the  military  authorities  in 
possession,  in  the  absence  of  legislation  by  Congress,  may 
make  such  rules  or  regulations  and  impose  such  duties 
upon  merchandise  imported  into  the  conquered  territory 
as  the}7  may,  in  their  judgment  and  discretion  deem  wise 
and  prudent. 


As  TO  THE  ASSUMPTION  OF  CONSULAR  FUNCTIONS  BY 
NAVAL  OFFICERS  IN  TERRITORY  HELD  BY  MILITARY 
OCCUPATION. 

The  following  letter  explains  the  opinion  of  the 
Department  of  State  in  matters  of  this  kind : 

DEPARTMENT  OF  STATE, 
Washington,  November  3,  1898. 
The  Honorable  The  SECRETARY  OF  THE  NAVY. 

SIR:  I  am  advised  by  the  Secretary  of  War,  upon  infor- 
mation received  from  Major  General  J.  F.  Wade,  U.  S.  V., 
President  of  the  United  States  Commission  for  the  Evac- 
uation of  the  Island  of  Cuba,  that  the  senior  officer  com- 
manding a  United  States  naval  vessel  in  the  harbor  of 
Habana  has,  in  virtue  of  an  existing  statute  or  regulation, 
assumed  the  functions  of  United  States  Consul  in  and  for 
the  port  of  Habana. 

It  is  presumed  that  the  statute  referred  to  is  Sec.  1433, 
Title  15,  Chap.  2,  of  the  U.  S.  laws  relating  to  Navy  and 
Marine  Corps  (p.  297). 

During  the  suspension  of  relations  between  the  govern- 
merits  of  the  United  States  and  Spain,  consequent  upon  a 
state  of  war,  and  still  continuing  notwithstanding  the  stip- 
ulated suspension  of  hostilities  between  them,  all  direct 
diplomatic  and  consular  representation  of  the  United 
States  in  places  and  ports  within  Spanish  control  is  neces- 
sarily suspended.  During  such  suspension  resort  has  been 


206 

had  to  the  usual  privilege,  recognized  by  international 
law,  of  placing  the  interests  of  American  citizens  in  the 
respective  ports  and  places  under  the  care  of  the  respec- 
tive British  diplomatic  or  consular  representative  whose 
good  offices  in  this  relation  have  been  recognized  and 
admitted  by  the  government  and  authorities  of  Spain. 
The  acting  Consul -General  of  Great  Britain  at  Habana, 
Mr.  Lucien  J.  Jerome,  is  so  acting  at  the  present  time  and 
will  continue  to  do  so  until,  by  the  final  evacuation,  the 
control  of  that  port  shall  pass  for  the  time  being  into  the 
hands  of  the  military  authorities  of  the  United  States, 
when,  of  course,  there  would  be  no  further  occasion  for  a 
consular  representative  there. 

In  view  of  the  fact  that  adequate  provision  exists  for 
consular  representation  of  the  United  States  at  Habana 
during  the  current  interval  and  in  view,  also,  of  the  further 
circumstances  that  the  same  technical  continuance  of  a 
state  of  war  which  would  prevent  the  titular  consular- 
general  of  the  United  States  at  Habana  from  returning  to 
his  post,  would  prevent  the  substitution  of  a  new  consular 
representative  whose  power  to  act  would  depend  upon 
recognition  by  the  local  authorities  and  whose  functions 
are,  by  the  statute  above  referred  to,  limited  to  mariners 
of  the  United  States,  I  have  the  honor  to  request  that 
proper  instructions  be  given  to  the  naval  officer  in  the 
premises. 

I  have  the  honor  to  be,  Sir, 

Your  obedient  servant, 

JOHN  HAY. 


INSURGENT  BLOCKADE. 
CERTAIN  CONCLUSIONS  OF  THE  DEPARTMENT  OF  STATE. 

In  the  following  letter  addressed  to  the  Secretary 
of  the  Navy  the  Secretary  of  State  discusses  the 
question  of  insurgent  blockade  and  formulates  cer- 
tain conclusions.  The  correspondence  in  full  may 
be  found  in  International  Law  Situations,  Naval 
War  College,  1902,  pp.  79-83,  embodied  in  a  some- 
what full  discussion  of  the  subject. 


207 

DEPARTMENT  OF  STATE, 
Washington,  D.  C.,  November  15,  1902. 
The  HONORABLE 

The  SECRETARY  OF  THE  NAVY. 

SIR:  I  have  the  honor  to  acknowledge  the  receipt  of  the 
letter  of  the  Acting-  Secretary  of  the  Navy  (346855  B), 
under  date  of  November  12,  inclosing  copy  of  a  letter  from 
the  president  of  the  Naval  War  College  containing  certain 
suggestions  respecting  interference  with  commerce  by  in- 
surgent vessels,  and  requesting  my  comments  thereon. 

While  as  a  rule  this  Department  is  reluctant  to  express, 
of  record,  general  opinions  or  comments  upon  questions  of 
a  more  or  less  academic  character,  the  papers  you  submit 
to  me,  and  particularly  the  statement  prepared  by  Pro- 
fessor Wilson  and  submitted  to  Captain  F.  E.  Chadwick, 
may  justify  some  general  observations. 

Cases   involving   assertion   of  the  rights  of  insurgent    insu    ;ent 
"  blockade"  are  necessarily  exceptional,  to  be  considered ceptionai. ls 
as  governed  by  exigent  circumstances  rather  than  by  doc- 
trine. 

In  dealing  with  concrete  cases  arising  within  the  official    HOW  dealt 
cognizance  of  the  Department  of   State  and  embracing W1 
points  of  international  law  like  those  presented  in  Mr. 
Wilson's  memorandum,  this  Department  endeavors  to  in- 
terpret the  consensus  of  international  law  authorities  with 
due  regard  to  the  precise  significance  of  the  term  "block- 
ade." 

Blockade  of  eneniv  ports  is,  in  its  strict  sense,  conceived  .B.1°ckadel, 

strictly  speak- 
to  be  a  definite  act  of  internationally  responsible  sovereign  ins-  and  .meaf- 

*  ures  marking  its 

in  the  exercise  of  a  right  of  belligerency.  Its  exercise  exercise, 
involves  the  successive  stages  of,  first,  proclamation  by  a 
sovereign  state  of  the  purpose  to  enforce  a  blockade  from 
an  announced  date.  Such  proclamation  is  entitled  to  re- 
spect b}7  other  sovereigns  conditionally  on  the  blockade 
proving  effective.  Second,  warning  of  vessels  approaching 
the  blockaded  port  under  circumstances  preventing  their 
having  previous  actual  or  presumptive  knowledge  of  the 
international  proclamation  of  blockade.  Third,  seizure  of 
a  vessel  attempting  to  run  the  blockade.  Fourth,  adjudica- 
tion of  the  question  of  good  prize  by  a  competent  court  of 
admiralty  of  the  blockading  sovereign. 

Insurgent  "blockade," on  the  other  hand,  is  exceptional, 
being  a  function  of  hostility  alone,  and  the  right  it  in- 
volves is  that  of  closure  of  avenues  by  which  aid  may 
reach  the  enemy. 


208 

insurgeem°sgnized  ^P  ^he  case  °^  an  unrecognized  insurgent,  the  foregoing 
conditions  do  not  join.  An  insurgent  power  is  not  a  sov- 
ereign maintaining  equal  relations  with  other  sovereigns, 
so  that  an  insurgent  proclamation  of  blockade  does  not 
rest  on  the  same  footing  as  one  issued  b}r  a  recognized 
sovereign  power.  The  seizure  of  a  vessel  attempting  to 
run  an  insurgent  blockade  is  not  generally  followed  by 
generaHygieanck admiralty  proceedings  for  condemnation  as  good  prize, 
entui^to^nter- an(^  ^  suc^  proceedings  were  nominally  resorted  to  a  de- 
nationai  respect.  cree  of  fae  condemning  court  would  lack  the  title  to  that 
international  respect  which  is  due  from  sovereign  states 
to  the  judicial  act  of  a  sovereign.  The  judicial  power  be- 
ing a  coordinate  branch  of  government,  recognition  of  the 
government  itself  is  a  condition  precedent  to  the  recogni- 
tion of  the  competency  of  its  courts  and  the  acceptance  of 
their  judgments  as  internationally  valid. 

To  found  a  general  right  of  insurgent  blockade  upon  the 
recoRnition  of  belligerency  of  an  insurgent  by  one  or  a 
- f ew  foreign  powers  wrould  introduce  an  element  of  uncer- 
tainty. The  scale  on  which  hostilities  are  conducted  by 
the  insurgents  must  be  considered.  In  point  of  fact,  the 
insurgents  may  be  in  a  physical  position  to  make  war 
against  the  titular  authority  as  effectively  as  one  sovereign 
could  against  another.  Belligerency  is  a  more  or  less 
notorious  fact  of  which  another  government,  whose  com- 
mercial interests  are  affected  by  its  existence,  may  take 
cognizance  by  proclaiming  neutrality  toward  the  contend- 
ing parties,  but  such  action  does  not  of  itself  alter  the 
relations  of  other  governments  which  have  not  taken  cog- 
nizance of  the  existence  of  hostilities.  Recognition  of  in- 
surgent belligerency  could  merely  imply  the  acquiescence 
by  the  recognizing  government  in  the  insurgent  seizure 
of  shipping  flying  the  flag  of  the  recognizing  state.  It 
could  certainly  not  create  a  right  on  the  part  of  the  insur- 
gents to  seize  the  shipping  of  a  state  which  has  not  recog- 
nized their  belligerency. 

It  seems  important  to  discriminate  between  the  claim  of 
a  belligerent  to  exercise  quasi  sovereign  rights  in  accord- 
ance with  the  tenets  of  international  law  and  the  conduct 
of  hostilities  by  an  insurgent  against  the  titular  govern- 
ment. 
sovereign  The  formal  right  of  the  sovereign  extends  to  acts  on  the 

rights  extend  to  i  M  •  .o        •    i  j.  •       i     i  • 

high  seas;  insur-  high  seas,  while  an  insurgent  s  right  to  cripple  his  enemv 

gent   rights   are  .  fr  .          .        ~ 

essentially    do-  by  any  usual  hostile  means  is  essentially  domestic  within 

mestic. 

the  territory  of  the  titular  sovereign  whose  authority  is 


209 

contested.  To  deny  to  an  insurgent  the  right  to  prevent 
the  enemy  from  receiving  material  aid  can  not  well  be 
justified  without  denying  the  right  of  revolution.  If  for- 
eign vessels  carrying  aid  to  the  enemies  of  the  insurgents 
are  interfered  with  within  the  territorial  limits,  that  is 
apparently  a  purely  military  act  incident  to  the  conduct 
of  hostilities,  and,  like  &ny  other  insurgent  interference 
with  foreign  property  within  the  theatre  of  insurrection, 
is  effected  at  the  insurgent's  risk. 

To  apply  these  observations  to  the  four  points  presented 
in  Professor  Wilson's  memorandum,  I  may  remark: 

1.  Insurgents   not   yet    recognized   as    possessing    the 
attributes  of  full  belligerency  can  not  establish  a  blockade  gent  blockade- 
according  to  the  definition  of  international  law. 

2.  Insurgents  actually  having  before  the  port  of  the 
state  against  which  they  are  in  insurrection  a  force  suffi- 
cient, if  belligerency  had  been  recognized,  to  maintain  an 
international  law  blockade,  may  not  be  materially  able  to 
enforce  the  conditions  of  a  true  blockade  upon  foreign 
vessels  upon  the  high  seas  even  though  they  be  approach- 
ing the  port.     Within  the  territorial  limits  of  the  coun- 
tiy,  their  right  to  prevent  the  access  of  supplies  to  their 
enemy  is  practically  the  same  on  water  as  on  land  —  a  de- 
fensive act  in  the  line  of  hostility  to  the  enemy. 

3.  There  is  no  call  for  the  Government  of  the  United  neVerSjuSrtffled  in 


States  to  admit  in  advance  the  ability  of  the  insurgents  to 
close,  within  the  territorial  limits,  avenues  of  access  to  *^r  ters  ** 
their  enemy.  That  is  a  question  of  fact  to  be  dealt  with 
as  it  arises.  But  in  no  case  would  the  insurgents  be  justi- 
fied in  treating  as  an  enemy  a  neutral  vessel  navigating 
the  internal  waters  —  their  only  right  being,  as  hostiles,  to 
prevent  the  access  of  supplies  to  their  domestic  enemy. 
The  exercise  of  this  power  is  restricted  to  the  precise  end 
to  be  accomplished.  No  right  of  confiscation  or  destruc- 
tion of  foreign  property  in  such  circumstances  could  well 
be  recognized,  and  any  act  of  injury  so  committed  against 
foreigners  would  necessarily  be  at  the  risk  of  the  insur- 
gents. The  question  of  the  nature  and  mode  of  the  re- 
dress which  may  be  open  to  the  government  of  the  injured 
foreigners  in  such  a  case  hardly  comes  within  the  purview 
of  your  inquiry,  but  I  may  refer  to  the  precedents  hereto- 
fore established  by  this  Government  in  enunciation  of  the 
right  to  recapture  American  vessels  seized  by  insurgents. 
1  have  the  honor  to  be,  sir,  your  obedient  servant, 

JOHN  HAY. 

2056—04  -  14 


INDEX. 


ADMIRALTY  JURISDICTION.     See  JURISDICTION-. 
ADULA— 

Case  of  (105). 
AGENTS— 

Immunity  of  those  of  foreign  governments  in  United  States  courts  (38). 

APPROACH- 
TO  blockaded  port  unwarranted,  even  to  make  inquiries,  by  master  knowing  of 

blockade  (112). 
ARBITRATION— 

Fur  seal  (Bering  Sea).     See  BERING. 
ARMS— 

Distinction  between  arms  as  cargo  and  as  equipment  (130);  generally  contra- 
band (131);  but  not  when  kept  solely  for  defense  against  "enemies,  pirates, 
and  assailing  thieves"  (132) ;  when  on  board  for  defense  not  conclusive  as  to 
vessel's  character  (132). 
ARREST— 

Of  deserters  under  foreign  flag  in  home  jurisdiction  (192). 
ASSIGNMENT— 

Neutral  title  by,  to  cover  enemy  interest,  overridden  by  captor's  claim  (163) . 
AUXILIARY  CRUISERS— 

Status  of  Yale  in  Spanish- American  war  (200). 
BELLIGERENCY— 

Operation  of  neutrality  act  not  necessarily  dependent  upon  state  of   (23);  nor 
upon  recognition  of  (36);  recognition  of  incurs  certain  restraints  and  liabili- 
ties (34);  conditions  of  recognition  of  (34);  distinction  between  recognition 
of  and  recognition  of  a  condition  of  political  revolt  (34). 
BENITO  ESTENGER— 

Case  of  (136). 
BERING  SEA— 

Award  of  Arbitration  Tribunal  in  matter  of  the  preservation  of  fur  seals,  and  of 

jurisdictional  rights  (166). 
BILLS  OF  LADING— 

Only  quasi  negotiable  (154). 
BLOCKADE— 

Different  kinds  of  (47);  difference  between  military  and  commercial  (49);  actual, 
or  simple,  as  distinguished  from  public  (108);  simple  maybe  established  by 
naval  officers  without  governmental  notification  (108) ;  presence  of  a  particu- 
lar force  not  necessary  for  effectiveness  (42);  not  dependent  upon  numbers 
for  effectiveness  (45);  effective  if  one  modern  cruiser  makes  entrance  dan- 
gerous (45,47);  effective  if  ingress  or  egress  be  dangerous  in  fact  (50);  not 
terminated  by  occupation  of  a  river  or  harbor  mouth  when  places  beyond 
are  held  by  enemy  (110);  legal  effect  of  (111);  violated  ipso  facto  by  vessel 
sailing  with  intent  to  violate  it  ( 111 ) ;  notice  of  to  charterer  is  notice  to  vessel 

211 


212 

( 120) ;  effectiveness  of  can  not  be  disputed  by  vessel  captured  after  once  being 
warned  (45);  of  north  Cuban  coast  instituted  and  proclaimed  (60);  of  Guan- 
tanamo  competently  established  (109);  insurgent  (207);  strict,  and  measures 
attending  its  exercise  (207);  strict,  can  not  be  established  by  unrecognized 
insurgents  (208,  209) ;  limitations  upon  insurgent  blockade  when  belligerency 
is  recognized  (208,  209). 
BLOCKADED  PORT— 

Masters  knowing  of  blockade  must  not  approach,  even  to  make  inquiries  (112). 
BOUNDARY— 

Between  Great  Britain  and  Venezuela,  title  by  prescription  recognized  (165) 
BRITISH  FOREIGN  ENLISTMENT  ACT  (31). 
BUENA  VENTURA— 

Case  of  (70). 
BUNDESRATH— 

Correspondence  in  case  of  (195). 
CABLES— 

Cutting  of  neutral,  in  enemy  waters  not  ground  for  indemnity  (194). 
CAPTOR— 

Claim  of,  overrides  neutral  title  by  assignment  to  cover  enemy  interest  (163). 
CAPTURE— 

Probable  cause  exists  for,  when  circumstances  warrant  suspicion  (57) ;  justified 
by  probable  cause  (79) ;  right  of,  unaffected  by  secret  liens  or  private  engage- 
ments (155). 
CARGO— 

On  enemy  vessels  is  presumably  enemy  property  (151). 
CARLOS  F.  ROSES— 

Case  of  (146). 
CAUSE— 

Probable,  for  capture,  exists  when  circumstances  warrant  suspicion  (57) . 
CHARTER— 

Of  neutral  vessel  to  an  enemy  makes  her  to  a  certain  extent  an  enemy  vessel 

(120). 
CHINA— 

Extraterritorial  jurisdiction  of  consuls  in  (176). 
CIVILIAN— 

Officers  and  crew  of  auxiliary  cruiser  Yale  "  in  the  service"  (201). 
COAST  FISHING  VESSELS— 

Exemption  from  capture,  see  EXEMPTION;  Sampson's  dispatch  concerning  (102); 

Department's  answer  (103). 
COLONY,  DISTRICT,  OR  PEOPLE— 

Why  words  were  included  in  act  of  1817  (27);  application  of  words  (28,  29). 
CONDEMNATION— 

Colorable  transfer  is  ground  for  (142). 
CONTINUOUS  VOYAGES— 

Case  of  the  Bundesrath  (195). 
CONSULAR  FUNCTIONS— 

Assumption  of  by  naval  officers  during  military  occupation  (205). 
CONSULS— 

Extraterritorial  jurisdiction  of  in  China  (176.);  those  of  the  United  States  have 

no  authority  to  give  a  license  of  exemption  to  enemy  vessels  (141). 
CONTRABAND— 

Arms:  Cargo  as  opposed  to  permanent  equipment  (130);  arms  and  ammunition 
generally  contraband  (131),  but  not  when  kept  on  board  solely  for  defense 
against  "enemies,  pirates,  and  assailing  thieves "(132);  provisions  are  not, 
in  general,  but  may  become  so  (139). 


218 

COOPERATION— 

British  China  Station  orders  concerning  (177). 
CRUISER— 

Auxiliary:  Case  of  Yale  (200). 
CUBA— 

Declared  free  and  independent  by  joint  resolution  of  Congress  (58). 
DATE— 

Of  sailing  unimportant  if  prior  to  that  set  for  beginning  of  war  (76,  78). 
DECREE— 

Spanish,  at  opening  of  war  with  the  United  States  (61) . 
DESERTERS- 

Arrest  of,  under  foreign  flag  in  home  jurisdiction  (192). 
DISTRICT— 

Application  of  words  "colony,  district,  or  people"  in  neutrality  act  (28,29). 
DUTIES— 

Accrue  to  military  occupant  (204). 
EFFECTIVE  BLOCKADE.     See  BLOCKADE. 
ENEMIES— 

Who  are,  in  general  (137);  status  of,  not  affected  by  individual  acts  of  friend- 
ship (140). 
ENEMY  PROPERTY— 

Determined  by  illegal  traffic  (137). 
ENEMY  STATUS— 

Not  affected  by  individual  acts  of  friendship  (140). 
ENEMY  VESSEL— 

Cargo  on  board  is  presumably  enemy  property  (151). 
EXEMPTION  FROM  CAPTURE— 

Not  governed  by  a  state's  diplomatic  attitude,  but  by  international  law  (66) ; 
only  for  vessels  on  original  voyage  from  the  United  States  (77);  none  for 
enemy  vessels  because  of  neutral  ownership  (69) ;  vessels  sailing  shortly  before 
as  well  as  shortly  after  war  began  included  under  President's  proclamation 
(78) ;  none  by  international  rule  for  mail  ships  ( 128) ;  none  for  ships  carrying 
government  mail  except  by  express  order  of  the  government  (129);  consuls 
of  the  United  States  have  no  authority  to  grant  to  enemy  vessels  (141). 
EXEMPTION  FROM  CAPTURE,  COAST  FISHING  VESSELS— 

History  of  rule  (82);  doctrine  familiar  to  United  States  (84);  recognized  by  the 
United  States  in  treaties  with  Prussia  (85);  interrupted  during  French  Revo- 
lution (86);  recognized  by  United  States  in  Mexican  war  (90),  and  in  treaty 
with  Mexico,  1848  (93);  not  denied  since  1806  (94);  opinions  of  various 
writers  (94);  now  established  rule  (101);  voided  by  warlike  employment 
(101);  does  not  include  "  great  fisheries  "  (101);  attitude  of  United  States  in 
Spanish  war  (102). 
EXILES— 

Reentry  of  American,  into  foreign  countries  (193). 
EXTRATERRITORIAL  RIGHTS— 

In  Shanghai  (174);  of  consuls  in  China  (176). 
FISHERIES— 

Coast,  see  COAST  FISHING  VESSELS,  also  EXEMPTION;  great,  not  included  in  exemp- 
tion of  coast  fishing  vessels  (101). 
FOREIGN  ENLISTMENT  ACT,  BRITISH  (31). 
FUR  SEALS— 

Award  of  Arbitration  Tribunal  (168) ;  concurrent  regulations  for  preservation  and 

protection  of  (170). 
GUANTANAMO— 

Blockade  of,  competently  established  by  Admiral  Sampson  (109). 


214 

HIGH— 

One  signification  of  word  and  its  application  to  the  seas  (13). 
HIGH  SEAS— 

Former  meaning  of  term  (7);  claims  of  sixteenth  and  seventeenth  centuries  (8); 
Hale' s  definition  (8);  American  court  definitions  (8);  indicates  certain  dis- 
tinctions (9);   Supreme  Court's  interpretation  in    United  States  v.  Rodgers 
(10,  15);  previous  Supreme  Court  pronouncements  (12). 
ILLEGAL  TRAFFIC— 

Stamps  property  as  hostile  ( 137 ) . 
IMMUNITY- 

Of  officers  or  agents  of  foreign  governments  in  United  States  courts  (38);  for  acts 

done  as  an  agent  for  a  revolutionary  government  (38) . 
IMPRISONMENT— 

Illegal,  of  United  States  citizens  abroad  (173). 
INDEMNITY— 

For  acts  done  by  a  mob,  see  MOB  VIOLENCE;  none  due  for  cutting  neutral  cables 

in  enemy  waters  (194) . 
INDEPENDENCE— 

Of  Cuba  declared  by  joint  resolution  of  Congress  (58). 
INSURGENT  BLOCKADE.     See  BLOCKADE. 
INTERNATIONAL  LAW— 

Is  part  of  United  States  law  (94). 
JOINT  RESOLUTION— 

Of  Congress  declaring  Cuba  free  and  independent  and  demanding  Spain's  with- 
drawal (58). 
JURISDICTION— 

Of  Russia  in  Bering  Sea  (169);  of  the  United  States  (170). 
JURISDICTION,  ADMIRALTY— 

Division  of  opinion  of  Circuit  Court  in  the  case  of  United  States  \.  Rodgers  (5); 
question  upon  which   division  arose  (6) ;   over  vessels  in   Detroit  River 
(14,  17);  general  rule  (14);  Mr.  Webster  on  (18);  unaffected  by  boundary 
line  in  the  Great  Lakes  (19). 
JURISDICTION,   EXTRATERRITORIAL— 

Of  consuls  in  China  (176). 
LADING— 

Bills  of,  only  quasi  negotiable  (154). 
LANDING  PARTIES— 

British  China  station  orders  concerning  (178). 
LAW— 

Courts  must  apply  it  as  it  is,  not  as  contended  it  should  be  (66) ;  international,  is 
part  of  United  States  law  (94);  municipal,  generally  holds  in  occupied  ter- 
ritory (203). 
LIABILITIES— 

Incurred  by  recognition  of  belligerency  (34). 
LIENS— 

Secret,  do  not  affect  right  of  capture  (155). 
LOLA— 

Case  of  (80). 
MAIL  SHIPS— 

Not  exempt  from  capture  by  international  rule  (128) ;  not  exempt  when  carrying 

government  mail  except  by  express  orders  of  the  government  (129). 
MERCHANT  VESSELS— 

Treatment  of,  prescribed  by  President's  proclamation  (62). 


215 

MILITARY  AUTHORITIES— 

Right  of,  to  levy  tariffs  during  occupation  (205). 
MILITARY  OCCUPATION.     See  OCCUPATION. 
MOB  VIOLENCE— 

To  Italian  subjects:  Letter  of  Secretary  of  State  concerning  (184);  in  case  of 
Antonio  Abbagnato  (190);  in  case  of  Spanish  consul  and  others  (185);  in- 
demnity for  injury  by,  not  a  general  right  (186) ;  redress  of  Italians  for  injury 
by,  same  as  for  United  States  citizens  (190);  indemnity  for  injuries  by,  in 
New  Orleans,  1891,  offered  and  accepted  (189,190). 
NAVAL  OFFICERS— 

Assumption  of  consular  functions  by,  during  military  occupation  (205);  may 

establish  blockades  (108). 
NEUTRAL— 

Ownership  does  not  exempt  enemy  vessels  (69);  vessels  chartered  to  enemy 

become  to  a  certain  extent  enemy  vessels  ( 120) . 
NEUTRALITY- 

Strict,  as  distinguished  from  duty  toward  friendly  nations  whose  domestic  peace 

is  disturbed  (24). 
NEUTRALITY  ACT— 

Usual  name  of  Title  LXVII  of  the  Revised  Statutes  (24);  its  operation  not 

necessarily  dependent  upon  a  state  of  belligerency  (23);  history  of  (24). 
NOTICE— 

Of  blockade  to  charterer  is  notice  to  vessel  (120). 
OCCUPATION— 

Of  entrance  does  not  necessarily  terminate  blockade  off  entrance  (110);  of  Santi- 
ago de  Cuba:  Executive  order  in  War  Department,  G.  0.  No.  101  (202) ;  right 
of  military  authorities  to  levy  tariffs  during  (205) ;  assumption  of  consular 
functions  by  naval  officers  during  military  (205). 
OFFICERS— 

Assumption  by  naval,  of  consular  functions  during  military  occupation  (205); 
naval,  may  establish  blockades  (108);  immunity  of  those  of  foreign  govern- 
ments in  United  States  courts  (38). 
OLINDE  RODRIGUES— 

Case  of  (40). 
ORDER  IN  COUNCIL,  BRITISH— 

Rules  for  the  treatment  of  merchant  ships  in  the  Crimean  war  (69). 
OUTBREAKS— 

Use  of  British  naval  force  during  (177). 
PANAMA— 

Case  of  (123). 
PAPERS— 

Spoliation  or  concealment  of  ship's,  not  in  itself  sufficient  ground  for  condem- 
nation (55,  56). 
PAQUETE  HABANA— 

Case  of  (80). 
PEDRO— 

Case  of  (58). 
PEOPLE— 

Application  of  words  "colony,  district,  or  people"  in  neutrality  act  (28,  29); 

meaning  of  word,  in  neutrality  act  (33). 
POLICY- 

Evidenced  by  prior  Executive  views  (74). 
PORT— 

Time  allowed  merchant  vessels  to  leave  after  war  began  (61,  62,  69  footnote). 


216 

PRESCRIPTION— 

Title  by.     See  BOUNDARY. 
PRIZE  MONEY— 

Of  civilian  officers  and  crew  of  auxiliary  cruiser  Yale  (200). 
PROBABLE  CAUSE— 

Capture  justified  by  (79) ;  existence  of,  when  circumstances  warrant  suspicion  (57) . 
PROCLAMATION— 

President's,  of  blockade  of  Cuban  north  coast  (60);  President's,  as  to  conduct 
of  war  at  sea  (62);  liberal  interpretation  by  court  (73);  construction  of  (74); 
intent  of  (76);  restricted  immunity  under  (77);  vessels  sailing  before  war 
began  included  in  those  exempted  under  (78). 
PROPERTY— 

Cargo  on  enemy  vessel  presumably  enemy  (151);  public  and  private,  during 

occupation  (203,204). 
PROVISIONS— 

Not  generally  contraband,  but  may  become  so  (139);  trade  in  them  with  an 

enemy  by  an  enemy  is  decisive  (139). 
REENTRY— 

Into  foreign  countries  of  Americans  exiled  therefrom  for  participation  in  revo- 
lutions (193). 

RESOLUTION,  JOINT.     See  JOINT  RESOLUTION. 
RESTRAINTS— 

Certain,  incurred  by  recognition  of  belligerency  (34). 
REVOLT— 

Recognition  of  a  condition  of  political,  as  compared  with  recognition  of  bellig- 
erency (34). 
REVOLUTION— 

Agents  of  successful,  are  official  representatives  of  state  (39) . 
RIGHTS— 

Of  foreigners  in  the  United  States  by  treaty  (186,  190). 
RULINGS— 

Of  Supreme  Court  can  not  be  changed  to  conform  to  foreign  opinions  of  supposed 

international  law  (113). 
SEALS.     See  FUR  SEALS. 
SEAS— 

Great  Lakes  are  essentially  (11,  19).     See  also  HIGH  SEAS. 
SHANGHAI— 

Extraterritorial  jurisdiction  of  consul  in  (176). 
SPANISH-AMERICAN  WAR.     See  WAR. 
SPANISH  DECREE— 

At  opening  of  war  with  the  United  States  (61). 
STATUS— 

As  enemy  unchanged  by  individual  acts  of  friendship  (140). 
SUPREME  COURT  RULINGS.     See  RULINGS. 
TARIFFS— 

Right  of  military  authorities  to  levy,  during  occupation  (205). 
TAXES— 

Accrue  to  military  occupant  (204). 
THREE  FRIENDS— 

Case  of  (20). 
TITLE— 

By  assignment.     See  ASSIGNMENT. 

By  prescription.     See  BOUNDARY. 


217 

TRADE— 

With  enemy  on  enemy  vessel  is  decisive  (139). 
TRANSFER— 

Colorable,  is  ground  for  condemnation  (142). 
TREATY  RIGHTS.     See  RIGHTO. 
UNITED  STATES  v.  RODGERS. 

Case  of  (5). 
UNDERBILL  v.  HERNANDEZ— 

Case  of  (37). 
VESSEL— 

Cargo  on  board  enemy  is  presumably  enemy  property  (151). 
VIOLATION  OF  BLOCKADE— 

Committed  ipso  facto  by  vessel  sailing  with  intent  to  violate  it  (111) . 
WAR— 

Existence  of,  in  revolutions  or  insurrections  not  necessarily  dependent  upon 
acknowledgment  of  belligerency  (39);  historical  attitude  of  the  United 
States  in  favor  of  mitigating  its  horrors  ( 72 ) ;  may  exist  before  formal  decla- 
ration or  actual  hostilities  (65) ;  Spanish-American:  Date  of  beginning  set  in 
declaration  of,  by  act  of  Congress  (61);  declaration  in  Spanish  decree  (61); 
rules  for  its  conduct  at  sea  (62). 
YALE— 

Case  of,  as  auxiliary  cruiser  (200). 

o 


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